A person being bound in his contract of marriage to secure his wife in well holden lands, was found to have implemented the obligation, by infefting her in ward-lands, which are liable to recognition, only on account of particular circumstances attending the case.
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A man being obliged, in his contract of marriage, to employ 20,000 merks upon well holden land to his wife in liferent, and to the heirs of the marriage in fee, and execution to pass at her father's instance, who being debtor to the husband in as much as with the tocher made 20,000 merks, gave infeftment out of his own ward-lands for the same, in the terms of the contract; the wife, after her husband's decease, pursued his heir for implement of the contract, in respect her father's lands held ward, and were in danger of recognition, and her husband could not collude with him to her prejudice.
Answered: She being infeft before the marriage by her own father, who might have stopt the marriage, and at whose instance execution was ordained to pass; it must be supposed, that all parties agreed to the implementing of the contract, by a security out of the father's lands.
The Lords, in this circumstantiate case, found the infeftment out of the ward-lands sufficient, unless recognition be incurred.
Fol. Dic. v. 1. p. 146. Harcarse, (Contracts of Marriage.) No 376. p. 97.
