A party granted a disposition to his niece with this proviso, that she should not marry without consent of certain persons. The contravention found relevant to annul; but the defence admitted, that she had required this consent, and it had been refused without a cause assigned.
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William Petre in Wester Saltoun, having granted disposition of his moveables to Allison Pooll, his niece, with this provision, That she should marry with the advice and consent of William Foord and John Calderwood in Saltoun, and in case she should not follow their advice, and marry otherways, the disposition is declared to be null and void; in that case, dispones his moveables to the said Allison and to her brother, and to Elizabeth, another sister, equally amongst them. And the said Allison having married without consent of the persons appointed by the father, her brother and sister raise a declarator against her, for declaring the disposition to be null, and that two parts of the moveables did belong to them. Alleged for the defender, That such provisions are unlawful, as being contra libertatem matrimonii, and can be no farther sustained but to oblige the person who is burdened therewith to enter into a rational marriage; and her husband being a suitable match, the persons appointed by the father cannot condescend upon any rational ground of their dissent. Answered, That such provisions are just and rational; and as it was in the uncle's power to have disponed his moveables to her or not as he pleased, and therefore she having contravened the provision of the disposition, she ought justly to lose the benefit thereof, which has been many times decided in the like case, and particularly is decided 1669, the Lady Hume against her Tenants, No 22. p. 2964., where the Lords found that knowledge and silence, and no dissent expressed for the space of 25 years was not sufficient, unless positive consent had been obtained and proven; and 17th January 1673, Rae against Glass, No 25. p. 2966., where the Lords found that there was no necessity for the parties to condescend upon the reasons of their dissents; and the 13th February 1680, the Laird of Buchannan against Elizabeth Buchannan, No 26. p. 2968., where, albeit it was offered to be proven that Buchannan was not sanæ mentis, and had declared that he would consent to no other marriage with his daughter but George Grant; yet, the Lords found a bond of provision, bearing, that quality was null, in respect his daughter had married without his consent, albeit the person she matched with, was a suitable match. The Lords found it relevant to annul the disposition, the provision in the disposition that she should not marry without consent of the person therein mentioned, to be proven by her oath; and if she acknowledge the same, found the answer relevant, that she required the persons by whose advice she was appointed to marry to give their consent, and that they refused to give a reason why they would not consent to the marriage.
Fol. Dic. v. 1. p. 189. Sir Pat. Home, v. 1. No 186.
