Where the cause of granting is expressed, that must be the rule.
Katharine Fenton and Mr Laurence Skinner v. Mr Thomas Skinner
Date: 23 January 1673 Case No. No 165.
A husband being obliged to provide his wife to a sum of money in liferent, and thereafter for love and favour infefting her in a tenement, the Lords refused to ascribe it in satisfaction of the first obligation.
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Katharine Fenton being provided by her contract of marriage with John Skinner to the sum of 2000 merks, to be employed to her husband and her in liferent, and to the heirs of the marriage in fee, which failing, to the heirs of the said Katharine whatsoever; the marriage being dissolved without heirs, she and her assignee pursue Mr Thomas Skinner, as representing the party contractor, for payment of the said sum. It was alleged for the defender, That the husband having conquest some tenements in Brechin to himself and her in liferent, he ought to have defalcation of so much of the 2000 merks as her liferent of the said tenements will amount to, at least ought to be free of the annualrent of the said principal sum during the possession of the said tenements, their rent and the liferent of the sum being of a like value. It was replied, That her infeftment in the tenement did bear expressly for love and favour, and not in satisfaction of her provision of 2000 merks contained in her contract of marriage; and they being disparata, the one the fee of a principal sum, and the other the liferent of the tenement, the one could never be ascribed in satisfaction of the other, neither could it be the meaning of the husband, who had expressly declared the liferent to be for love and favour. The Lords did repel the defence in respect of the reply, and found, that they were not in the case of debitor non præsumitur donare, which holds only where the donation and debitum are ejusdem naturæ, and where the cause of the donation is not at all expressed, whereas here the liferent was made expressly for love and favour.
Fol. Dic. v. 2. p. 147. Gosford, MS. No 563. p. 305.
