A married woman's deeds in what cases effectual against herself, the husband consenting or not consenting.
Subject_3 SECT. VII.
Obligations by Wives relative to their own Property.
Margaret Marshall v. Geills Ferguson
1683.
December. Case No. No 192.
Found, in conformity with the above.
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A wife, with consent of her husband, having obliged herself to pay 500 merks by bond, containing an obligement to infeft the creditor by way of annualrent in lands she was heiress of, the creditor after the husband's decease pursued a poinding of the ground.
Alleged for the wife; That she could not (stante matrimonio)oblige herself personally, either as principal or cautioner, for payment of sums; nor could the infeftment, which was but consequential and accessory to the personal obligements, militate against her, she having revoked the same, especially there being no judicial ratification.
Answered; Wives may dispone principaliter rights standing in their person, without necessity of judicial ratification. And though the act 83. Parl. 11th James III, mention the case of a wife denuding herself of her liferent, by consenting to her husband's disposition of the fee, and ratifying the same upon oath, the act requires not that to be done, but narrates only speciem facti. And though the personal obligement cannot operate against the wife, she cannot except against the real right, which she might validly dispone, and consequently wadset; nor can the real right here be understood as accessory to the personal obligement, but must be considered the same way as if it had proceeded by way of contract of wadset.
‘The Lords repelled the defence, and sustained process for poinding of the ground.’
Fol. Dic. v. 1. p. 400. Harcarse, (Stante Matrimonio.) NO 878. p. 248
