Tocher granted in a Contract of Marriage how far presumed in Satisfaction of former Provisions.
Dame Lilias Seton, and Sir James Ramsay of Logie, her Husband, v. George Seton of Barns
Date: 22 June 1680 Case No. No 153.
Found in conformity to Cockburn against Cambusnethan, supra.
Click here to view a pdf copy of this documet : PDF Copy
Dame Lilias Seton, and Sir James Ramsay of Logie, her husband, pursue George Seton of Barns, her brother, for L. 900 Sterling, promised to her by her father, Sir John Seton, in a letter to her. Alleged, The letter is conditional, as shall appear by a writ under his hand, which is not produced, and non creditor referenti nisi constet de relato; 2do, It bears, “In case I die before you be married, and your tocher paid but ita est, she was married in her father's lifetime, and he gave 10,000 merks of tocher with her, and got a discharge of it. This being reported, “the Lords find, the father having after the date of the letter met with his daughter, and married her, and provided her to a competent tocher, the letter does not oblige; and therefore assoilzied.”
1680. July 1.—In the action Dame Lilias Seton against Barns, (22d June 1680.) being beaten from the letter, they recurred to a new claim, viz. the 5000 merks contained in her infeftment, which albeit it carried that same quality of the missive, viz. that it should be void and null when she was married and her tocher paid, yet it behoved to remain as a debt, because, by an agreement betwixt this Barns and his father, he did take his father expressly obliged to purge and obtain her renunciation of that infeftment, which he never would have done, if he had looked upon it as a fight satisfied and extinct.—Answered, That infeftment is res hactenus judicata, and out of doors by a decreet absolvitor in foro, obtained by Barns against it in 1663; and this new allegeance on the contract betwixt his father and him was competent then, and being omitted, cannot be proponed now; and cannot be said to be emergent, or noviter veniens notitiam; see an express and solemn decision on this, 20th January 1631, Gordon, voce Process. 2do, Esto the allegeance were receivable, (as it is not) nulla modo relevat; for there is nothing more ordinary for provident men than to take obligements ad majorcm cautelan to procure renunciations of rights though paid; and Barns took the same for his other two sisters their infeftments, as well as this. This being reported, “the Lords found it competent and omitted, and therefore assoilzied.” Thereafter she gave in a bill, and reformed her allegeance thus, viz. That they offered to prove by that contract in Barns's own hands, he accepted the right of the estate, with the burden of her infeftment, and that eo nomine to get a renunciation of it, he granted his father a power to burden the estate with 10,000 merks. This was found relevant of consent; but the contract bears no such thing, but, on the contrary, hath an express declaration, that nothing therein contained shall be a homologation or acknowledgment thereof; so that if it was satisfied before this contract, it draws no force nor ratification from it.
Fol. Dic. v. 2. p. 146. Fountainhall, v. 1. p. 103. & 105.
