Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION.
Mary Buchanan v. The Laird of Buchanan's Heirs
Date: 13 February 1680
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Mary Buchanan craves adjudication of her father the Laird of Buchanan's lands, upon a bond of provision for 20,000 merks.
Alleged,—The bond is conditional, if she married with her father's consent, and failing of him, with consent of such friends as he substituted: but ita est she had married, without his consent, Stewart of Ardvalloch, whose predecessors were at feud with their family. Answered,—mo, The bond quoad L.10,000 must be valid, because, by her mother's contract of marriage, the daughter was provided to as much. 2 do, The bond as to the other 5000 merks must subsist, because conditiones appositæ ad restringendum matrimonii libertatem are inutiles and rejected. (See Swinburn, and Godolphin, upon last wills and testaments.) And her father was determined to marry her to George Grant, (to whom he had disponed his estate, and passed by his own relations;) and she could not love him. Replied,—Conditions prohibiting marriage simply are indeed reprobated, or if they run only to marry one man; but not if they be conceived ne Titio vel Sæio nubat; see Craig p. 161, de Conditionibus matrimonio appositis; and to say, you shall not marry without the father's consent, is such an honest condition, that, though it were not adjected, it is inherent both by the laws of God and man: and, esto she was not obliged to follow her father's advice, she was bound, at least, to have asked it. Duplied,—He was of a weak judgment, and not very right, and so it was needless to ask counsel from him. Triplied, Then she was obliged to have asked the substitute's consent, the father being quasi civiliter mortuus. Vide Perez, ad tit. C. de indicta Viduitate.
The Lords found, she ought not to have the 5000 merks, because she did not perform the conditions, and ask her father's consent; which they found she was at least obliged to do, since it is possible she might have persuaded her father to consent; unless she will prove that he was non suæ mentis, or she will condescend upon some other relevant reason why she needed not seek it.
If a father shall give his child a bond for 10,000 merks, with this quality, In case he or she marry without his consent, that then the bond shall be absolutely null; it is thought this is an unlawful quality and condition: but if it bear, that he restricts the 10,000 merks to 5000 merks, in case of their marriage without his consent, the bond in that case will only be sustained for the 5000 merks; for that doth not absolutely impede their marriage, nor render them destitute of an aliment.
