Subject_1 IMPLIED DISCHARGE and RENUNCIATION. Subject_2 SECT. XIII.
Effect of Consent.
Lady Knox v. Arbuthnot of Knox
Date: 8 January 1679 Case No. No 83.
A wife consented to a minute of her daughter's contract of marriage, but not to the principal contract. Found that she did not thereby confirm a clause in the minute, which disponed an estate without reservation of her own liferent, to which she had been formerly provided. She was considered to have consented only to the marriage.
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The Lady Knox being infeft in certain lands conquest by her husband during the marriage, ‘ to him and her in conjunct-fee,’ pursues removing; compearance was made for Arbuthnot of Knox, to whom Colonel Barclay of Knox, (having married his only daughter), disponed to him the lands in question; 1mo, By a minute of contract, and then by an extended contract, in which minute the lady is a subscribing consenter; 2do, This infeftment being taken by the lady in liferent, is a donation between man and wife, revocable and revoked by the contract of marriage, disponing the same lands, without reserving the wife's liferent. It was answered to the first, That the lady having been only consenter in the minute of contract, and not in the extended contract, it could not import further than her consent to the marriage, and not to all the clauses in the minute, disponing the estate without reservation of her liferent, whereby she would be excluded from all provision; for the minutes of contracts of marriage do only contain the materials agreed on, but the extension and formality thereof in law, in cases especially not obvious to a wife, are reserved to the extended contract, in which the lady is not mentioned as a consenter, much less doth she consent ‘for all right of liferent,’ &c. As to the second, The putting the lady in liferent of the lands conquest was no donation revocable, because there was produced a bond by the Colonel, obliging himself to infeft his future spouse in the conquest. It was replied, That this bond being between the contract and marriage, was a donation between man and wife; for marriage is reckoned from the contract, and not from the solemnizing; for, after the contract, all deeds done by the wife in prejudice of the husband are null, and a pari, the husband from that contract is reckoned husband, and donations granted by him are revocable; besides, that this bond is false, and under improbation, as being made up long after the contract of marriage, to sustain the wife's infeftment, not only for what is provided in her contract, but for the whole conquest.
The Lords found, that a wife's consent to a minute of a contract of marriage of the daughter, she not being consenter in the principal contract, did only import her consent to the marriage, and not to the disponing the estate, without reservation of her liferent. They found also, that the infeftment taken originally to the husband and wife, during the marriage, though it did not mention to be in implement of the bond, or any other cause, yet that it was in effect the implement, and not a donation; but superseded to give answer to that point, whether the bond being after the contract and before the marriage, were revocable, as a donation between man and wife, or were null as contra bonos mores, till the improbation of that bond were discussed.
