Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR PETER WEDDERBURN, LORD GOSFORD.

Euphen Auchterlonie, John and Hendry Aikmans,
v.
Mr William Airman

Date: 13 February 1677

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In a suspension and reduction, at the instance of Mr William Aikman, who was charged at the instance of Euphen Auchterlonie, his mother-in-law, and John and Hendry Aikmans, her children of a second marriage; upon a ratification, granted by him, of his father's second contract; whereby he was obliged, as apparent heir of the first marriage, to infeft the mother in liferent and the two sons in fee, conform to the provisions granted by his father; upon this reason,—that the ratification and obligement were conditional; and intuitu of a marriage to be solemnized betwixt the suspender and Mary Hepburn, by whom he should have gotten, in tocher, the sum of nine thousand merks; and the ratification doth bear this express condition, That in case the marriage shall not take effect, and not be solemnized and completed, in that case the ratification should be null; but so it is, that the marriage did dissolve by the death of his said spouse, within year and day, without any children of the marriage: and so he being prejudged of his tocher, in contemplation whereof he did grant this ratification, which ought to be reduced, and declared void and null.

It was answered for the charger, That the condition being, in case the marriage should not take effect,—it being solemnized and completed, that these words could import no more than if they had never been married, or the marriage consummated; whereas the suspender, and his then apparent spouse, were not only married, but did live together in family many months thereafter; and so, upon that reason, which never existed, the ratification cannot be declared null. Likeas, the ratification hath other onerous causes besides that of his future marriage; being in contemplation of a disposition made by his father, of his whole estate, with the burden of his debts.

The Lords did seriously consider this as a leading case; and found, That these words, “shall not take effect,” could only be in reference to a considerable tocher then contracted; that he, being deprived thereof by the dissolution of the marriage, cannot be obliged to perform any thing that he is bound to by contract in contemplation thereof, as being causa data causa non secuta. But thereafter, it being offered to be proven, that the husband had gotten, by legacy, more than will satisfy onera matrimonii, during the time that the wife lived; the Lords found, that he should be proportionally liable to perform the ratification in favours of the goodmother and children of the second marriage.

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