Rights conquest, but taken in favour of younger children. - Lands conquest, and again sold. - Liferent of conquest over and above the liferent of a certain sum. - Sums conquest, but applied for purging incumbrances. - Who heir of conquest?
Collington v. Heir of Collington
1688.
July. Case No. No 22.
A wife, by a contract of marriage, being provided to the liferent of what the husband should conquest, or, of what sums he should receive payment of during the marriage, was found not entitled to the liferent of sums conquest during the marriage, which had been applied by the husband for purging incumbrances upon his estate.
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By contract of marriage betwixt my Lord Collington and his second Lady, my Lord having obliged himself to employ what he should conquish, or any sums of money he should receive payment of as due to him, and to take the rights and securities thereof to himself and his Lady, and longest liver, in conjunct fee; and having renounced his jus mariti of thirty-six chalders of victual that stood in the Lady's person, which obligement she accepted in satisfaction of all she could ask or claim of jointure, terce or third, except the house or park of Collington; the Lady after her husband's decease, pursued his son and heir, this Lord Collington, for a liferent of a great sum alleged conquest by the father, the pursuer's husband, arising from fees and pensions from the King, with which he had purged old wadsets and incumbrances upon his lands, upon these grounds, 1. That the money conquest must be repute extant, in so far as the wadsets of the lands now redeemed, are surrogate in place thereof; especially the Lady having quit her terce of the lands which are now freed, and which she would have fallen to, in case he, in contemplation of the said obligement of conquest, had renounced. 2. The case where a wife is competently provided by her contract, obligements of conquest do usually admit of some extension, for provisions to children of a former marriage, which is debitum naturale, and for rational deeds where no fraud appears; yet that cannot be pleaded here, where the conquest is the wife's principal provision; and it could not be esteemed a rational act, to take the conquest of the second marriage from the bairns thereof, and give it to the eldest son of the first marriage. 3. The other alternative clause, “or any sum of money he should receive payment of, &c.” clears the design, and is exegetic of the conquest; and all the pensions, salaries, &c. were received, and were due. 4. 'Tis the general rule, That all acquired during a marriage, and remaining at the dissolution thereof, or employed to satisfy debts of former marriages, should be reckoned conquest; and any special exceptions are not applicable to this case, and never allowed but when the wife is aliunde competently provided by her husband, and the disposal rational; neither of which can be here subsumed on Niddery's case, No 16. p. 3062, was among heirs of line and provision, and contained other specialities; what is here advanced may be confirmed from several decisions; March 14. 1623, Skene contra Forbes, No 1. p. 3045.; July 3. 1627, Lady Dunfermling contra her Son, No 10. p. 3054.; January 11. 1632, Lady Binning contra Hadden*; and June 27. 1676, Earl of Dunfermling contra Lord Callendar, No 7. p. 2941.
Answered for the defender: By the law and custom of this kingdom, nothing was conquest but what remained free at the dissolution of the marriage, and the husband being fiar of the conquest, he might spend and debauch the same, and much more might he pay his debts contracted before the marriage, which is a rational and prudent deed; nor is conquest (which is but fortuitous and often adjected as a compliment) to be considered so strictly as positive obligements. Again, nothing of the conquest was remaining; and esto the Lord Collington had cleared his old estate of debt, that was rational, and was not repute conquest in Niddery's case, nor yet liable as surrogatum. 2. The Lady having the house and yards, and the liferent of the sums due the time of the contract, (which is considerable) and thirty-six chalders of victual by the first marriage, she is plentifully provided; whereas the defender hath a great family of children, and but a small fortune. 3. If the other clause,. “or to receive payment,” &c. had been exegetic, it had been a tautology; but it is a distinct positive obligement as to a conjunct fee of all sums then due to my Lord that he should receive, which are still in my Lord Huntly's hands never received. 4. My Lord Collington, the pursuer's husband, sold lands to the value of 10,000 merks, for the payments, and her portion was likewise employed for that end, though renunciations were always taken, and not, assignations, the hazard of conquest not being apprehended: so that it cannot be presumed that the debt was purged with conquest-money; and to confirm what is advanced, decisions were also adduced; February 9. 1669, Cowan contra Young and Reid†, 1676, Littlejohn's case†; July 19.1679, Morice contra Morice† ; February 10. 1629, Oliphant contra Finnie, No 19. p. 3066.; July 15. 1673, Robson contra Robson†, No 4. p. 3050.; December 8. 1687, Frazer contra Frazer†; where the conquest of a second marriage employed for paying the debt of the first was sustained, though a considerable estate fell to the first marriage, which the husband had before the second marriage.
* Examine General List of Names.
† See Provision to Heirs and Children.
‘The Lords assoilzied the defender;’ upon which the pursuer appealed to the Parliament, where the decreet was turned into a libel, and reviewed.’ See Appendix.
Fol. Dic. v. 1. p. 198. Harcarse, (Contract of Marriage.) No 398. p. 105.
