Rights conquest, but taken in favour of younger children. - Lands conquest, and again sold. - Liferent of conquest over and above the liferent of a certain sum. - Sums conquest, but applied for purging incumbrances. - Who heir of conquest?
Beattie v. Roxburgh
Date: 4 January 1672 Case No. No 21.
By contract of marriage, the husband bound himself to employ 3000 merks for his wife's liferent use, and by a posterior clause, provided her to the liferent of all lands conquest during the marriage. It was found, that this clause of conquest could only be understood of what was conquest, more than answerable to the annualrent of the 3000 merks.
Click here to view a pdf copy of this documet : PDF Copy
By contract of marriage betwixt Roxburgh and Sandilands his spouse, Roxburgh is obliged to employ 3000 merks for her liferent use; and, by a posterior clause, provides her to the liferent of all lands conquest during the marriage. Shortly after the marriage, he conquest a land in Edinburgh; likeas he had another tenement before the marriage, out of which he infeft his wife in an annualrent, in full satisfaction of the contract of marriage; which infeftment, she keeped both in his lifetime, and after his death; but being on death-bed, he infeft her of new in the tenement acquired after the marriage, bearing expressly, for implement of the clause of conquest. And she pursues now James Roxburgh, as lucrative successor to his father, by a disposition after the contract of marriage, to fulfil that obligement, to employ the 3000 merks.—The defender alleged absolvitor, 1mo, Because the pursuer had accepted an infeftment of an annualrent out of the tenement acquired before the marriage, in full satisfaction; 2do, The two clauses in the contract of marriage, cannot import that the wife should have the whole lands conquest by the clause of conquest, and should return for the implement of the special clause, for employing the 3000 merks, upon the husband's heirs, or the tenement he had before the marriage; because the clause of conquest can only be understood of what was conquest, more than was answerable to the annualrent of 3000 merks; so that the last infeftment granted to her by her husband, must necessarily satisfy both clauses, there being no other conquest. And albeit the infeftment bear, to be expressly in satisfaction of the clause of conquest; that was but a voluntary gratuitous deed, that the husband was not obliged to by the contract, and was done in lecto ægritudinis; whereupon the defender has a reduction ex capite lecti, which he repeats by way of exception.—The pursuer answered to the first defence, That she never accepted or bruiked by the first infeftment, that bears in satisfaction; and her intenting of this cause is a renouncing of it; and to the second defence it was answered, That the clause of conquest extended to the whole conquest, and the husband might well, in implement, infeft his wife in this tenement; neither has the defender interest to reduce this disposition, as done on deathbed, in prejudice of the heir, because he is not heir, but lucrative successor, which is only a passive title, but no active title.—The defender answered, That albeit primarily and immediately, it be the heir's privilege, not to be prejudged by deeds on death-bed; yet secondarily, it is competent to the creditors of the defunct, or heir, who are also prejudged by such deeds; because, if the right stood in the heir's person, they could affect the same; and it was so found in the reduction, at the instance of the creditors of Balmerino and Couper; at whose instance, Couper's disposition on death-bed was reduced, albeit Balmerino was neither heir nor pursuer; and there is no reason, that if an heir should forbear to enter, creditors should be prejudged. See Title to Pursue.
The Lords found, That the defender, as creditor in the sums whereupon the disposition proceeded, had interest to reduce the disposition; and found the wife's second infeftment reduceable, as being in lecto, in so far as it deborded from the contract of marriage; and found, that thereby that infeftment behoved to be interpreted in the first place, for satisfying the special obligement of employing the 3000 merks; and that the superplus benefit of the tenement, if any was, was comprehended in the clause of conquest only; and found no necessity to decide the first defence, concerning the acceptance of the first infeftment, whether the wife's taking and keeping of it in her custody, did import the same.
