Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION.
Barbara Grant v. Janet Cuthbert
Date: 8 November 1677
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Where a bond is granted payable to a man and his wife, and the longest liver of them two; yet the Lords have several times found, and particularly in the case of Gregorie Grant and Bailie Fraser, that the husband, as dominus bonorum, is in the power and freedom to uplift and discharge without his wife, and that she has no right nor interest to quarrel the same. And yet, on the 8th of November, 1677, the Lords decided the contrary, in the case of Barbara Grant, relict of William Neilsone, merchant in Invernesse, against Janet Cuthbert, relict of Archibald Neilsone, son to the said William. The case was this:—William Neilsone grants a bond for 400 merks to his son Archibald, and Janet Cuthbert, his future promised spouse, (before their marriage,) in liferent and conjunct fee, and to the heirs of the marriage in fee; William, in his testament, recommends to his wife, Barbara Grant, whom he names his executrix, to pay this sum. Accordingly, she actually pays it to her son Archibald, and recovers his discharge of it, but not the bond: therefore, after Archibald's death, she convenes Janet Cuthbert, his relict and executrix likewise confirmed to him, to exhibit and give her up that bond as satisfied and paid. The Commissary of Inverness, before whom it is pursued, decerns her to give it up. She suspends upon this reason, that the Commissary had committed iniquity in decerning her to give up that bond, upon the pretence that her husband had received payment thereof; because it being a bond granted by the father to his son, and to the suspender, his daughter-in-law, before her marriage, and being made payable to him and her in liferent and conjunct fee, and so she being provided to the liferent of it; the same could not be uplifted, discharged, nor disposed upon by the husband alone, neither ought she to be prejudged by their collusion; and the charger was in mala fide to pay it to the husband, without she had seen it re-employed.
Whereunto it was answered for the charger, that the reason ought to be repelled as altogether irrelevant; because the husband's taking of the bond payable to himself and wife in liferent and conjunct fee, could never so state her in the right of that sum, as to impede the husband from uplifting the money at his pleasure and discharging it; in so far as the dominion of the sum remaining still penes maritum and the last termination being upon his heirs, and the wife being under the power of the husband, this were to invert that order, and to put the husband quoad this sum under her power, and to state the propriety of the sum in her, and to hinder all commerce and freedom of bargaining between man and man. Et quid juris, if the husband had assigned the bond, or it had been affected by his creditors' arrestments or other diligences? The debtor would not have been heard to refuse to pay the assignee or arrester; and the adjection of the wife is but a personal quality, and not accidens reale; and the relict, suspender, has action against her husband's representatives, to get the said provision made up to her. And it not being due upon an heritable security, but a simple moveable bond, quid impedit why the husband could not validly discharge it, it being truly paid to him without any collusion? And as double payment is odious in law, so solutio cum bona fide facta is very excusable, and is privileged sometimes to operate liberation; especially where it is made by a simple and ignorant woman, in whom ignorantia juris excusatur; præsertim ubi agitur de damno vitando, as here, L. 6, 7, and 8 D. de juris et facti ignorantia. Besides, by the conception of the bond, non apparet actum that this was to be a part of her liferent provision, but is only a clause of style adjected of course, hoc maxime attento, that by a posterior contract of marriage she is competently provided aliunde.
This debate being taken to interlocutor, and reported by my Lord Orchardton, (Pitmedden ox,) as a part of his trial, the Lords found the wife had such a right to the liferent of this sum, that the debtor could not securely pay it, nor the husband alone lift it; at least, he had no otherways power to lift it, without it had been re-employed in the terms of the former bond, to be forthcoming for her liferent use, since it was granted to him and her before their marriage, and so could not be changed nor altered without her consent; for bonds taken by a man to himself and his wife in liferent and conjunct-fee during the marriage, they are presumed to be the husband's means, and so fall under the compass of donatio inter virum et uxorem stante matrimonio, though they flow from a third party, and are revocable tacite vel expresse; and the husband's lifting the money without his wife, and applying it another way, is a tacit revocation and declaration of his intention and mind to alter. See Dury, 21st December, 1638, Laird of Craigmillar and Chalmers. Vide supra, 9th February, 1672, Laird of Balnamoon contra Jo. M'Intosh, No. 321. And therefore the Lords suspended the charges upon the Commissary of Inverness's decreet of exhibition of that bond simpliciter. Vide Dury, 15th January, 1634, Hepburne and Seton. Vide the beginning of this Number, [p. 186.] See Leidington, 16th June, 1551, Arnot and Douglas. Vide 19th November, 1679, Ferguson and Weyms; item, 14th July, 1681, Tolquhon.
Upon reporting of this answer of the Lords, I contended, that Janet Cuthbert behoved yet to exhibit and give back that bond; because I having paid it indebite to her husband, as I might have condicted and repeated the money from him, and have made him warrant his own discharge, so she behoved præstare illius factum, being executrix confirmed to him; et frustra petis quod mox es restituturus, et quern de evictione tenet actio eundem agentem repellit exceptio; and, therefore, as representing the husband, to whom it was indebite solutum, she behoved to warrant his deed, and give up the bond. Whereunto it was answered,—That she being absolved, there was no libel in campo, and it was not competent hoc ordine to convene as executrix; but, whenever they insisted against her in a pursuit super eo medio, then she would give them a good answer, which was this,—that the inventory of the testament and her intromission was exhausted, partly by debts she had taken course with, and partly by what was owing to herself as creditrix by the contract matrimonial, or otherwise. This answer Craigie sustained, and would not receive our new libel hoc loco.
Then I offered to find caution for her liferent of the sum in the bond, (which was all her interest in it, for the fee of the sum was uncontrovertedly elided and taken away by the discharge; for the husband could dispose upon the fee of the sum at his pleasure, and his heirs cannot reclaim, but might not evacuate his wife's liferent in it,) upon her delivering up of the bond, reserving repetition per condictionem indebiti, as accords of the law. This the Lord Justice-Clerk granted.
