Contract performable at different periods. - Effect of non-performance, and of over-performance. - If the one party repudiate, is the other free? - Whether irritancy implied by failing to perform at the day. - Effect of improper performance. - Contract for mariners wages. - Contract between master and servant. - Contract of affreightment. - Contract not signed by all parties. - Obligation ad factum pręstandum.
Lady Woolmet and Dankeith her Spouse v. Major Biggar
Date: 14 June 1671 Case No. No 22.
Effects of mutual prestations in a contract of marriage, debated, but not determined.
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Jean Douglas Lady Woolmet being by her contract of marriage infeft in the half of the lands of Woolmet, did with her husband consent to a wadset of the whole lands for 28,000 merks, wherein there is a back-back setting the lands and coal to her husband and her the longest liver of them two for payment of the annualrent of the money; which wadset, the said Jean in her viduity as tutrix renewed to the first wadsetter's assignee, and became personally obliged, both for the principal sum and back-tack duty, and took the backtack, half to herself and half to her son the heir; but after the first wadset, her husband set a tack of the whole coal to his seven children, for twelve years, they paying twelve hundred merks yearly to the wadsetter, and two merks yearly to his heir; which tack expired in anno 1663; after which the said Jean Douglas and David Cunningham of Dankeith her husband, pursue Major Biggar as intromitter with the coal for the half of the profit thereof conform to the back tack, who alleged absolvitor, because the back-tack, in so far as it exceeded the Lady's jointure, was a donation between man and wife, and was revoked by the children's tack, and being once revoked, remained for ever revoked, because the ground of law prohibiting donations between man and wife, and anulling the same nisi morte confirmentur, is introduced ne mutuo amore se spolient, and therefore nothing can make them effectual but the husband's continuing in the same mind to his death; but any signification of alteration of his mind, directly or indirectly, though it were in his testament or codicil, or by any deed whereby he owns the thing disposed, as still at his disposal, is sufficient to annul the wife's right; as if he should grant a wadset of the same lands, though without mention of his prior liferent, given gratis stante matri-monio, it would revoke the same; so that though the husband redeemed the wadset, the wife's right could not revive. So here the bairn’ tack being of the whole coal for twelve years, doth wholly revoke the back-tack, as to the wife, not only during these years, but for ever; 2do, There is a minute of contract betwixt the husband, his wife, and Raith of Edmonstone, clearly showing the change of his mind, and restricting the Lady to her first liferent. It was answered, that albeit in jure donationis, or where there was a clear and liquid excess of the right received, exceeding the right quite, any deed evidencing the change of the husband's will, might be sufficient to recall it; yet that holds not here, where the Lady quited a certainty for a casualty, viz. the profit of a coal, which might many ways have been ruined and unprofitable, in which case she would have nothing for her jointure, and so it was permutatio spei, aut jactus retis, and at the time of the wadset, was not of more value, in buying and selling, than the jointure of the lands, being certain; 2do, This not being a pure donation, the husband could not recal it till he had restored his wife to her first liferent, and relieved her of all burden and distress she had sustained by the wadset; neither had he shown his mind to change, but only in part. And as to the contract with Raith, it was in contemplation of a marriage, and was all founded on advancing sums to redeem the wadset, whereby the back-tack ceased; 3tio, The defender cannot exclude the pursuer, unless he pay her all by-gone years of her jointure she wants, from 1654 to 1667, by arrestments and processes upon the back-tack, and free her of the principal sum and annualrent, and satisfy her of the damage she has sustained by lying out of her liferent, for all these years, and sustaining a long pursuit, wherein she is willling to acquiesce.
The Lords, in respect of this offer, and that the defender did also offer to free and relieve her, rested therein, and did not proceed to advise the former points, in jure.
Stair, v. 1. p. 733.*** Gosford reports this case:
In a declarator at Dankeith's instance, against the Major, to hear and see it found, that the Lady Woolmet his spouse, having, as liferentrix of the half lands of Woolmet, consented to a wadset, both of the lands and coal of Woolmet, wherein there was a back-tack granted to Woolmet and her, for payment of the annualrent of 28,000 merks, lent upon the wadset; which back-tack being revoked by Woolmet, by setting a tack of twelve years of the coal to his children, for their provisions, the said twelve years being expired, that the back-tack did revive, and that she had a right to the whole benefit of the coal, ay and while the wadset was redeemed;—it was alleged for the defender, That by a former decreet of the Lords, it was found that the tack set to the children was a revocation of the back-tack granted to the Lady, as being donatio inter virum et uxorem, in so far as it exceeded the worth of her liferent-lands, to which she was provided by her contract of marriage, and therefore could never revive it, being once extinguished, seeing the setting of a tack for twelve years, to begin after Woolmet's decease, which might be thought equivalent to the liferent of a widow, ought to be interpreted in law, a total revocation, it being such, in indicium mutatæ voluntatis, that the husband thereby intended that she should have no benefit thereby; likeas thereafter, by a minute of a contract of marriage to which the Lady had consented, the estate of Woolmet was provided to the eldest son, and the coal appointed for the bairns' provisions, and the Lady was only to enjoy her liferent-lands contained in her contract of marriage, by which there not only was a total revocation, but it was homologated by the Lady herself. It was replied for the pursuer, That the tack set to the children being only for twelve years, was only a revocation ad tempus, but not absolute, and so did revive after expiration of the tack; and for the minute of the contract, seeing it was only in order to a marriage, which was never perfected in the father's lifetime, and was done in contemplation of a tocher of L. 10,000, whereby the wadset should have been relieved pro tanto, which was never paid, but on the contrary, the heir of Edmonstone, who was party-contractor, was declared free of the tocher by a decreet; therefore nothing could be founded upon that minute which never took effect; but in law this back-tack could not be reputed donatio inter virum et uxorem, seeing it was remuneratory, viz. for consenting to the wadset of her liferent-lands, and the lady being obliged to pay the back-tack duties, as likewise the principal sum, upon premonition, whereby she was distressed, and forced to pay the back-tack duties of several years, and yet had nothing in recompence, but the hazard and uncertainty of a coal rent. To which it being duplied, That as to all damage and hazard either as to bygone tack duties, which were paid, and might be due in time coming, or distress for the principal sum, the defenders were willing to relieve and secure the pursver by compensation upon her intromissions as tutrix, and giving real surety out of the lands, or by an assignation to a comprising and decreet-arbitral, whereby Major Biggar had right to the wadset;
The Lords did find the offer relevant, and ordained count and reckoning to go on for the Lady's intromission, and her prejudice by payment of back-tack duties, or lying out of her liferent lands, and that sufficient surety should be given for freeing her of all damage and prejudice in time coming, at the sight of two of their number; and this they did without deciding the debate and point of law, which if they had done, it is thought that the foresaid deeds of revocation, with the relief of all loss, and security for the future, was sufficient to revoke all benefit of the back-tack, in so far as it might exceed the value of her liferent lands.
