Subject_1 HUSBAND and WIFE. Subject_2 DIVISION IV.
The Husband's powers with regard to the management of the common stock, and of the Children.
Binning v. Brotherstanes
Date: 16 February 1675 Case No. No 140.
A husband granted procuratory of resignation in obedience to a decree. The act found also to affect the interest of his wife.
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Alexander Binning, by contract of marriage with Margaret Trotter, was obliged to resign a tenement of land in favours of himself and his wife in liferent, and the heirs of the marriage in fee; and accordingly resignation being made, infeftment was taken to him and his wife, and their heirs foresaid.
Thereafter the said Margaret having deceased, there being only one daughter of the said marriage (Margaret Binning), the said Alexander married a second wife, and did oblige himself to provide the heirs of that marriage to 10,000 merks; and thereafter did induce the said Margaret his daughter of the first marriage, after her minority, to give a bond, obliging her to resign the above mentioned tenement, to which she was to succeed as heir of provision, to her father, in favours of herself and the heirs of her own body, which failing, in favours of Alexander Binning, her brother of the second marriage, and his heirs whatsomever, and to do no deed to prejudge him anent the succession.
The said Margaret Binning being thereafter infeft as heir of provision to her said father in the said tenement, did by contract of marriage with William Brotherstanes, oblige herself to resign the said tenement in favours of herself and the said William, and the heirs of the marriage, which failing, his heirs whatsomever; and upon the said resignation she and her husband were infest.
Thereafter the said Alexander Binning her brother did obtain a decreet against the said Margaret and her husband for implement of the said bond, and for granting a procuratory of resignation for resigning of the said tenement, conform to the said bond, in favours of the said Margaret herself and the heirs of her body, which failing, in favours of the said Alexander; and in obedience to the said decreet, the said Margaret and her husband did resign the said tenement; and infeftment was taken to the said Margaret and the heirs of her body, which failing, to the said Alexander After the said Margaret's decease, the said Alexander did obtain decreet against the tenants of the said tenement for mails and duties, which being suspended by the said William Brotherstanes, and turned into a libel, it was alleged for him, that he ought to be preferred, being infeft long before the pursuer, and seven years in possession: Whereunto it was replied, That the defender was denuded of any right that he had by the infeftment foresaid, in favours of the said Margaret and her heirs of provision foresaid; and that the pursuer had thereby right as heir of provision to her.
To which it was duplied, That being incarcerated upon the said decreet against him and his wife for implement, he had resigned for obedience as husband, and authorising his wife, but did not intend, nor could not be decerned to denude himself of his own right, which he had for so onerous a cause by his contract of marriage.
The Lords having considered the procuratory of resignation granted by the defender's wife and himself, did find that he had granted the same not only for obedience, and for his interest as husband, but for his own interest, and as taking burden for his wife; and so did denude himself of any right that he had, in favours of his wife and the pursuer as heir of provision; and therefore preferred the said Alexander.
Upon the debate it was agitated amongst the Lords, whether such clauses in tailzies, viz. that no deeds should be done in prejudice of the heirs of tailzie and provision, and their succession, do import that the granter of such obligements should not have power to dispose of the land that is tailzied, and have that liberty which is inherent to dominium ? or if it should import only, that they cannot break the tailzie, or provide the lands in tailzie to other heirs.
The President was of opinion, that the fiar could not dispone nor do any other deed; and that the said clause was not restricted to the altering or breaking of the tailzie. But this point was not decided.
Dirleton, No 257. p. 124.*** Gosford reports the same case:
In a double poinding raised at the instance of the tenants of a tenement of land and laigh booth against the foresaid persons, It was alleged for Alexander Binning, That he ought to be preferred, because he stood infeft in the saids lands and laigh booth, upon a procuratory of resignation granted by Margaret Binning his sister, in obedience of a decreet of the Lords, whereby she was decerned to infeft herself as heir of provision, conform to her bond made for that effect. It was alleged for William Brotherstanes, That notwithstanding thereof he ought to be preferred, because he having married the said Margaret, and provided her to a liferent, in contemplation thereof, she had resigned her right of the foresaid tenement and booth in his favours, whereupon he was infeft, and by virtue thereof in possession by the space of nine years, and so ought to have the benefit of a possessory judgment; especially that bond granted by his wife being fraudulently obtained from her by her father when she was in familia, and thereby any provision she had was taken away, and her father's whole estate settled upon a brother, who is a son of a second marriage. It was replied, That the said Alexander's right being founded upon a decreet of the Lords, could not be taken away but by a reduction; and the said William could never quarrel the same, because he had subscribed the procuratory of resignation in question in obedience not only as consenter, but as taking burden for his wife. It was replied by the said William, that he did subscribe the same in prison, and that the words making him take burden were only verba narrativa foisted in by the writer, which he never considered; whereas the procuratory itself did only make him a consenter, and his consent being only to a deed of his wife who was decerned, and for obedience, could not prejudge him. The Lords notwithstanding did prefer the said Alexander Binning, seeing the decreet against the wife could never be reduced, being a decreet in foro; and that the procuratory being conceived as said is, the said William could not have the benefit of a possessory judgment, albeit it were found that he was only a consenter, seeing there was no reservation of his right, it being in his power to consent or not as he thought fit.
