Inhibition has Effect only against Voluntary Rights.
Marjory Halyburton and Her Husband v. George Morison of Bognie
Date: 24 June 1673 Case No. No 98.
A general obligation to provide children of a marriage to a sum or to a wadset equivalent, was found to secure a special infeftment, altho' inhibition was served before the infeftment.
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In a reduction, pursued at the said Marjory's instance, and her husband, as having right by progress from Patrick and George Watts, in and to the sum of one thousand three hundred merks, for which they had recovered decreet against John Watt, their brother; and, upon the dependence, had served inhibition against him, after which he had made a disposition to Morison of Bognie, of the mill and lands of Forgie; it was alleged for the defender, That albeit the disposition was after the inhibition, yet it depended upon a prior cause and obligement, to which it behoved to be drawn back, notwithstanding of the inhibition; in so far as the said John Watt, by a minute of his contract of marriage, for his tocher, received by him from his wife, was obliged to provide to her in liferent, and the heirs of the marriage in fee, the sum of two thousand and five hundred merks, or to a wadset equivalent thereto; and accordingly, having children begotten of the marriage, did infeft them in the said lands; so that the mother being dead, and the marriage dissolved, the daughters of the said marriage, and the father being infeft, might lawfully dispone these lands in favour of Morison, being the sole heirs of the marriage, and creditors to their father by the foresaid minute of contract. It was replied, That the minute being conceived, as said is, could give no right to the daughters, unless they were served heirs of the marriage, quo casu they would be liable for the father's debt, and could do no deed in prejudice of a lawful creditor who had served inhibition; and, notwithstanding of any such obligement in a minute, the father did still remain fiar, and had a right to the property of the said lands, to which the heirs of the marriage could not succeed till after the father's decease; and during his lifetime, he might dispone thereupon, or lawful creditors might comprise or affect the same by inhibition. 2do, The obligement in the minute being only in general to provide the heirs to a certain sum or wadset, without making mention of any particular lands; an inhibition might be lawfully served before any particular infeftment, which could never be drawn back to the general obligement, in prejudice thereof. It was duplied to the first, That albeit the obligement in the minute was to provide the heirs of the marriage, yet that must be interpreted the bairns of the marriage, seeing it was to a particular sum of money; and if it were otherwise, all contracts of marriage might be easily ended, albeit the father received an opulent tocher, and the children left destitute of all maintenance; and the Lords have been in use oft times to find so, that the heirs should be interpreted bairns; which being granted, the bairns of the marriage, during the father's lifetime, having obtained themselves declared the only children of the marriage, after their mother's decease, and so being lawful creditors by the minute of the contract, which is prior to the inhibition, it can never affect any disposition made by them or the father, which depends upon a cause prior thereto. It was duplied to the second, That albeit the minute bears an obligement only in general to provide sums of money or lands, yet that being prior to the inhibition, the same cannot hinder the fulfilling thereof by particular infeftments, which must be ascribed thereto as the preceding cause.——The lords having much reasoned upon the debate, did delay to give their interlocutor, in jure, though most of them inclined to sustain the reduction, in respect the defenders alleged this pursuit to be upon collusion, to frustrate the provisions made by John Watt in a second contract of marriage; whereupon they ordained them to be heard, and the infeftment granted to the children of the first marriage to be produced; after production whereof, and the debate being of new resumed, they assoilzie from the reduction, ex capite inhibitionis, and found that the infeftments given to the heirs, being out of particular lands, ought to be drawn back to the minute of the contract, which was prior to the inhibition, bearing a general obligement; which does not at all decide that point of law, if the obligement made in favour of the heirs of the marriage should be interpreted bairns, so as to make them preferable to lawful creditors, who served inhibition before their infeftments. But after all these debates, upon the 4th of July 1673, it being alleged for the defenders, That the decreet given against John Watt, wherein he was holden as confessed, was by mere collusion, in so far as there could be nothing produced for proving his intromission with the debts due by the Laird of Frendraught, or that ever Frendraught was debtor to their father; and if it were sustained against a prior lawful creditor, that a decreet, wherein a common debtor is holden as confessed, were sufficient to constitute debt, it were take away the security of all creditors;—it was answered, That the decreet being given twelve years ago, and never reclaimed against, and homologated by payment of a part of the sums contained in the decreet and apprising, and the parties obtainers being dead, and there being no presumption that John Watt should collude with his brethren to prejudge his own children, and being now become bankrupt, and lapsus bonis, it were of a far more dangerous consequence to sustain collusion, to be proved by witnesses, in prejudice of an assignee, for an onerous cause, and that without any reduction ex capite fraudis. The Lords did, notwithstanding, sustain the collusion, to be proved by the common debtor's oath, to which they did repone him and by the oath of the Laird of Frendraught, the verity of the debt, and payment thereof to John Watt; and gave warrant to both parties to adduce witnesses, or any writ for proving the verity thereof; which seems hard, there being no reduction ex capite fraudis, to take away any assignee's right for an onerous cause, by way of defence.
Fol. Dic. v. 1. p. 474. Gosford, MS. No 599. p. 342.
