Scottish Court of Session Decisions

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

Walter and Robert Locharts
v.
William Lochart of Wicketshaw

Date: 6 July 1677

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In an action at the instance of Walter and Robert Lochart, as being provided by their father, Steven Lochart, to the sum of 6000 merks, conform to a bond granted by William Lochart to his father; Steven being then his eldest son and apparent heir; against the defender, William Lochart, as representing him;— it was alleged for the defender, That the bond granted by the goodsire was ipso jure null, in so far as he was minor, et in familia with Steven, his father, to whom he granted the bond. Secundo, It was null upon that ground, That it was contra pacta connubialia; in so far as, by the contract of marriage, wherein the fee of the estate was provided to the said William, it was only with the burden of 4600 merks; and therefore, any addition of 1400 merks, by a bond, was ipso jure null.

It was replied, That the power to burden the fee of the estate, both by the contract and the posterior bond in favour of the rest of the children, who had no other provision, being in contemplation of the whole fee of the land and estate in favour of his apparent heir, was most valid in law, and could never be revoked by the son as minor; there being no lesion, but granted for a most onerous and just cause. Secundo, Not only the defender's goodsire, but likewise his father, long after their majority, had homologated the said bond, by making payment of the annualrent, and receiving discharges therefor from the pursuers.

It was duplied, That the payment was only made by the defender's father, who did not know of these nullities, not being acquainted therewith, nor living the time of the granting of the bond; which, as to the father, was null, as being granted contra pacta dotalia.

The Lords did repel these defences; being chiefly moved upon that ground, That the defender's father, after majority, had homologated the last additional bond of 1400 merks, by making payment of the whole annualrents several years, and that he could not be ignorant of the true condition thereof; seeing not only his father, but his nearest friends and relations were bound, and they did take burden for them: and, albeit he did live long after majority, yet neither he nor his father did ever revoke the same.

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