Subject_1 HUSBAND and WIFE. Subject_2 DIVISION IX.
The wife's personal privileges.
Fin v. Fin
1682.
November. Case No. No 288.
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The Lords inclined to find, that a wife subscribing consenter to a disposition of lands, whereof she had the liferent, and not judicially ratifying the same, might revoke, and that metus reverentialis was a sufficient ground of fear in wives who had a privilege; for positive vis et metus (which is a common reason of reduction to every person) could scarce be proved by wives, who may be privately put under the just impressions of it when no witnesses are present. And when wives judicially ratify, the Judge is so jealous that they are overawed and forced to do so, without daring to reveal the same, that he makes them swear, that they were not compelled to subscribe the deed to be ratified. Although, de praxi, where wives dispone rights in their person, or consent thereto, they do not always judicially ratify.
Harcarse, (Stante Matrimonio.) No 873. p. 247.*** Sir P. Home reports the same case:
David Fin of Whitehill having granted a wadset of the lands of Whitehill to Margaret Fin, his sister, in liferent, and to Margaret and Anna Baillies, her daughters, in fee, for the sum of 1200 merks, affected with a back-tack; and the reverser having failed in payment of the back-tack duty, the said Margaret Fin pursues a declarator of expiring of the back-tack. Alleged for the defender, That the back-tack could not be declared null, because it did not contain a clause irritant, in case of not payment of the back-tack duty, that the tack should be null and void; but all that the defender could be liable to was the payment of the tack duty. Answered, That albeit the back-tack contain not a clause irritant, yet must de jure, and by the nature of all tacks, in case two terms run in the third unpaid, the tack becomes null and void, as in the case of feu infeftments, which is perpetua locatio, which is clear by many decisions; Hope in his title of Wadsets, John Dishington against the Lady Pittenweem, voce Wadset; William Hamilton against the Earl of Argyle, Ibidem; and, by a late decision, in February 1627, Lawson against Scot, voce Tack; albeit there was only but one year's tack duty resting; and back tacks, contained in contracts of wadsets, are of the same nature as other tacks. The Lords sustained the declarator for declaring the tack null, albeit it wanted a clause irritant, unless the defender purge the payment of a tack duty betwixt and a certain day and find caution for payment thereof in time coming.
