Subject_1 HUSBAND and WIFE. Subject_2 DIVISION XI.
Marriage Dissolving within the Year, all things are Restored hinc inde.
Subject_3 SECT. II.
Rights flowing from third parties in contemplation of the marriage.
Guthrie v. Guthrie
Date: 9 November 1672 Case No. No 381.
A marriage having been dissolved within year and day, a tocher provided by a brother to his sister, payable to her husband, who was to employ it for her use, was found void.
Gosford's report of this case, next page, is different.
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By contract of marriage betwixt John Menzies and Agnes Guthrie, Thomas Guthrie her brother is obliged to pay to the said John 500 merks of tocher, and that In satisfaction of her portion-natural, and all provisions made to her, whereof she discharges her brother. The marriage having dissolved within year and day, by the death of the husband without children, the said Agnes pursues her brother for payment to her of the tocher; who alleged absolvitor, because his obligement being in contemplation of the marriage, the same being dissolved, the obligement ceaseth, even though he had been obliged to pay, and employ for his sister the said sum; whereas he is only obliged to pay it to the husband, who was to ware and bestow a sum for his wife; and if a voluntary concession of a tocher, upon the account of a marriage, should be obligatory, though that marriage dissolved without effect, it would be of very evil consequence to parents and others. It was answered, That if the brother's obligement had been, or borne to be, for love and favour, this ground might have been with some probability alleged; but here the sister discharges her portion-natural, and all provision; for which if she were now pursuing, this contract would exclude her from any further than this 500 merks, whatever the value of her interest were, notwithstanding the dissolution of the marriage. It was replied, That the contract did not bear, that there was any thing due to the sister; and the clause ‘in satisfaction, &c.’ is of mere style, and the dissolution of the marriage puts both brother and sister in the case they were in before the contract.
The Lords would not sustain this action, but found the contract dissolved, even as to the brother and sister, unless there had been a portion or provision due to the sister, and that the clause ‘ in satisfaction’ had not been adjected in course of form, without communing or consideration.
Fol. Dic. v. 1. p. 414. Stair, v. 2. p. 116.*** Gosford reports the same case:
In a pursuit at Agnes her instance, against Thomas Guthrie her brother for payment of 500 merks, super hoc medio, That the said Thomas, in the contract of marriage betwixt the pursuer and John Menzies, became obliged to pay in name of tocher to the said John the foresaid sum, for which the said Agnes and her future husband did accept the same, in full satisfaction of all portion-natural which might befall to her through her father's decease, and did discharge her brother thereof; and seeing the marriage was now dissolved by the death of the said Menzies within year and day, therefore her brother was obliged to pay her the foresaid sum. It was alleged, That the marriage being dissolved, no action could be founded upon that contract of marriage, bearing that the same was to be paid in name of tocher to the husband; and therefore, as to any portion-natural, or provision due by the father, the defender must be pursued via ordinaria upon these titles.
The Lords did sustain the action, notwithstanding of the defence, and found, that albeit as to the obligement for tocher payable to the husband and his heirs, the same was extinct by the dissolution of the marriage; yet quoad the pursuer, who had given a sufficient discharge of all portion-natural and provisions, against which she can never be reponed, albeit they did far exceed the sum of 500 merks, that the contract was still obligatory against the defender for payment of that sum which was due upon another just cause than for tocher.
