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.
Beatrix Somervell v. Alison Paton
Date: 2 February 1686 Case No. No 193.
Found in conformity with Elies against Keith, No 191. p. 5987. and with the above.
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Beatrix was provided to a liferent in her contract with umquhile Lawrence Johnston; and Paton, her mother-in-law, proprietrix of a tenement, being obliged to infeft her son Laurence, and the said Beatrix his spouse in that tenement, and being now charged to do it, she suspended on these reasons; 1mo, That this obligement to infeft was relative to another obligement on her in that same contract, to pay her son 4000 merks; but that principal obligation is ipso jure null, being granted by a wife stante matrimonio; ergo, the accessory one is also null. 2do, That this is a donation by a wife to her husband, being to his eldest son, who is eadem persona, and so is revocable, and she had de facto revoked it now. Answered to the first, Though the personal obligement of a woman vestita viro be null, yet where she is principal disponer, with her husband's consent, of rights out of her own lands, that is valid. See Stair's Instit. B. 1. tit. 4. § 16. To the second, This was neither to the husband nor son, but to a third party, the son's wife; and so it is not donatio revocabilis. This being reported by Redford, the Lords repelled the two reasons, and found the obligement on the wife's lands valid and effectual, and not revocable.
Fol. Dic. v. 1. p. 400. Fountainhall, v. 1. p. 400.*** Harcarse reports the same case:
George Johnston and Alison Paton his spouse, who was an heiress infeft, having, in their son's contract of marriage, obliged themselves, conjunctly and severally, to pay a sum to him and his wife at the first term after the granter's deceases; and the mother having obliged herself, with consent of her husband, to dispone their whole tenements in favour of their said son and his wife, in conjunct fee and liferent; the father and son being dead, the son's Wife pursued her mother-in-law upon her obligement to dispone.
Alleged for the defender; That the bond containing a personal obligement stante matrimonio, it could not oblige her. 2do, The obligement being in favour of the son, who is eadem persona with the father, is is donatio inter virum et uxorem.
Answered; Though personal obligements to pay do not oblige a wife, yet an obligement to dispone a right in her person is valid. And as her actual disponing, with consent of her husband, would have been valid, so an obligement to dispone must oblige her to fulfil. 2do, The wife who is a stranger here, pursues, and not the son's heirs.
The Lords decerned against the mother-in-law to dispone, in so far as concerned the daughter-in-law's liferent.
