A party disponed his estate to his son, in his son's contract of marriage, which he kept in his own custody. Being a mutual evident, no presumption of extinction took place.
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David Riddoch, by contract of marriage betwixt his son Alexander and Janet Ballentyne, did dispone to the said Alexander his estate; and thereafter did dispone the same to his second son David Riddoch, for payment and with the burden of all his debts, who did thereafter dispone the same to Stewart of Ardvorlich for a just price.
The said Stewart of Ardvorlich pursued a reduction of the disposition, contained in the said Alexander his contract of marriage, upon that reason, That the said contract of marriage was not delivered to the said Alexander, at the least there being but only one double subscribed, the same was given back to David Riddoch the father, and was lying by him the time of his decease; and it was evident, that it was never intended that any other use should be made of the said contract, but only in order to get a marriage to the said Alexander, as being provided to the said estate, in so far as the said disposition in favours of the said Alexander was without the burden of the disponer's debts, which were very great, and did not so much as reserve his liferent. Whereunto it was answered, That the contract was a mutual evident, subscribed by both parties, and that marriage had followed upon the same, and therefore it could not be taken away up the pretencce of not delivery.
The Lords found, That though the contract had been beside the father the time of his decease, it was not to be considered as instrumentum penes debitorem, being a mutual evident: But thereafter it was replied, That the pursuer offered to prove, that not only the said contract was lying by the disponer, the time of his decease, but an assignation blank of the said contract, which, being in the disponer's hands, was in effect a retrocession or discharge of the disposition contained in the contract; which reply the Lords found relevant. In præsentia.
This reply was found also probable prout de jure. See Proof.
