Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR ROGER HOG OF HARCARSE.

The Earl of Dunfermling
v.
The Earl of Callendar

Date: 6 January 1683

Click here to view a pdf copy of this documet : PDF Copy

In the minute of contract of marriage, betwixt the Earl of Callendar and the Lady Dunfermling, in anno 1633, he having obliged himself to provide the conquest, debts being first paid, to her in conjunct-fee and liferent; it being alleged, That the said provision did extend only to lands and sums to be conquest, and not to teinds,—for that clauses of conquest are strictissimi juris, and land and teinds are jura separata;—Answered, The minute being drawn by my Lord himself, who was no lawyer, it appears, that, under the designation of lands, he understood teinds; for, having provided her to the conjunct-fee of the lands and barony of Livingston, without mention of teinds in the obligement, in the clause mentioning the rights and securities granted to her, it bears of the said lands, together with the teinds; which implies, that he looked upon lands to comprehend teinds in the first part of the obligement. 2. The conquest is provided to her in the same way as she is provided to the lands of Livingston, and consequently to the teinds of the conquest. 3. The Lady's opulent jointure of 20,000 merks being the only subject out of which there was any prospect of conquest, it were unreasonable to disappoint her thereof. 4. She being provided to sums, she had right thereto, whatever way employed, whether on lands, teinds, or bonds jure surrogati. The Lords, in respect of the conception of the minute above mentioned, found the Lady to have right to teinds. Here, it was not considered, if the teinds were under tack, or annexed to the lands. The Lords also found, That the price of lands sold by the Earl of Callendar, before the marriage, was not to be presumed remaining at the time of the marriage, unless it were proven: quo casu it would be presumed that they were employed to acquire lands after the marriage; and a proportion of lands effeiring thereto would not be considered as conquest during the marriage: And, albeit the pursuer could prove that these sums were otherwise expended, yet it is not without debate, but that lands effeiring thereto ought to be subduced from the conquest; seeing, had not these sums been so employed, others with which the conquest was made might have been expended upon the occasion; and, money being a fungible, we are to consider the species on't, whether it be the individual money that belonged to the husband before the marriage, or not; but it is equally reasonable that the estate, before the marriage, be made up, which perhaps may be liable to the like obligement of conquest of the first marriage, as that debt due by the husband before the second marriage should be paid out of the conquest during the marriage, where there is no preceding estate; and if there be an estate, it is reasonable the debt be deduced out of it. Vide No. 352, [1aird of Niddery against his Brother James, February 1683;] and No. 391, [Frazer against Frazer, 6th December 1687.]

Page 85, No. 349.