Effect of Fraud - of Force and Fear - of Simulation of a Gift of Escheat - of Spuilzie - of Pactum contra Fidem - of Minority - of Reduction ex capite lecti - of Donatio inter Virum et Uxorem - of Payment to an Adjudger.
Duff v. Fowler
Date: 16 July 1672 Case No. No 95.
A right granted by a son to his father, contra fidem tabularum nuptialium, cannot be challenged upon that head in the person of a singular successor, purchasing bona fide from the father.
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Donald Fowler of Culnald, in his son's contract of marriage, provides him and his future spouse to certain lands for their entertainment, during the father's life; but takes a tack from the son of the same lands, for a tack-duty far within the worth, which he assigns to his brother, and he transfers the same to William Duff, who pursues the son for mails and duties. The son alleged, 1mo, That this tack not being granted to assignees, the pursuer as assignee could not make use thereof, because tacks are stricti juris. It was answered, That liferent tacks by many decisions are excepted from that rule, and that they do extend to assignees, if they be not excluded, though they be not expressed.
The Lords repelled this defence, in respect of the reply.
The son further alleged, That this tack is null, as being fraudulent contra fidem tabularum nuptialium; for the father having, by his solemn contract of marriage, provided the land to his son and his wife, during the father's lifetime, it was a most fraudulent deed to take a tack of the same lands, far within the avail, which was not known or consented to by the wife, or the contractors on her part, and is to the detriment both of husband and wife, as to their present subsistence.
The Lords found this defence relevant, if the tack was granted at the time of the contract of marriage, or any time thereafter before the marriage; and that not only in favours of the wife, as to her liferent, but as to both husband and wife as to their present subsistence.
And it being alleged, That this fraud could not extend to Duff as assignee for an onerous cause, who was not partaker of the fraud,
The Lords ordained the defenders to condescend if they could instruct that either Duff's right was without an onerous cause, or that when he took it he knew that it was contrary to the contract of marriage. See Personal and Transmissible.
Fol. Dic. v. 2. p. 69. Stair, v. 2. p. 102.*** Gosford reports this case:
Donald Fowler in Inverness being provided by his father, in his contract of marriage with his wife, to the conjunct fee of a tenement of land, and the fee to the heirs of the marriage; at that same time the father did most fraudulently take a tack from the son during life, which he did assign to William Duff, who thereupon pursues his son to enter him to the possession. It was alleged, That the tack being purchased by fraud and circumvention by the father, contra fidem tabularum nuptiarum, it was vitium reale, and ought not to prejudge the wife and children, and in law is null, not only as to the father, but as to all right from him. It was replied, That the pursuer being an assignee for an onerous cause, unless it were proved that he were particeps fraudis, might not be prejudged of the benefit of the assignation.
The Lords did sustain the defence, notwithstanding of the reply; and found, that such fraudulent conveyances betwixt a father and a son, ought not to prejudge the wife and children; and that the assignation in favour of the pursuer being posterior to the contract of marriage, the pursuer must seek relief of the father, but could be in no better condition, as to the wife and children, than the cedent himself; fraud and deceit being vitium reale doth affect singular successors. The pursuer being assignee for an onerous cause, as to the rent of the houses, they found, that during his lifetime, he had right to pursue; and therefore decerned, unless the defender would allege, that he was particeps fraudis.
