What subjects fall sub communione bonorum et debitorum.
Subject_3 SECT. I.
Illiquid or conditional claims. - Rights having tractum futuri temporis. - Bygones. - Bills of Exchange. - Claims of relief. - Parapharnalia, &c.
Fotheringham of Pourie v. The Earl of Home
Date: 7 February 1693 Case No. No 3.
It was found that the jus mariti did no more carry an obligation falling due after the dissolution of the marriage, than the jus relictæ would carry it, or the gift of single escheat, unless the condition did exist, and was purified before the denunciation or gift.
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The Lords repelled the first two dilators, that the bonds, which were the grounds of the confirmed testament, were registered, the one after the granter's death, and the other a non suo judice in the Bailie-court books of Dundee, where Ogilvy of Muiry, the granter, never dwelt, and so were no more but copies; in regard the confirmed testament itself was a sufficient active title, and though the fiscal had confirmed, he had a title. They also repelled the 3d dilator, that the assignation from the executor was but of the nature of a factory, and so testamento non executo it expired; because this was no part of the inventory of Muiry's testament, but only another way of conveyance from Yeoman to Duncan, for making up the title. They also repelled the 4th dilator, that they had confirmed a sum of Finlater's as executors-creditors; and found this to be jus tertii to the Earl of Home; but the Lords demurred on that defence, that the Laird of Ayton's bond to his mother, and Muiry her husband, was a conditional bond, and was never purified, nor existed in Muiry's lifetime, and so could not be in ejus bonis, nor fall under his jus mariti; for the obligement ran, that Ayton should pay his mother and Muiry, her husband, seven bolls of victual, or the Sheriff prices for the same, from 1649 till her death, in case Ayton should decease without any heirs-male procreated of his own body; ita est, Ayton died without sons, but he outlived both his mother and Muiry, so that, at the time of their decease, the obligation was pendent, and the condition unpurified, so that there was a possibility of Ayton's having sons, and therefore the bond not having full effect in Muiry's lifetime, it was contended that it could not belong to him. Some argued, that a bond payable after one's decease would fall to his executors. It was answered, That case differed toto cælo ; for there dies obligationis venit, sed non cessit; whereas here, in a conditional bond, nec cessitnec venit dies, for non constat if ever the condition shall exist, and then the obligation perishes. Though many of the Lords were clear, that this fell to Muiry's executors, yet it was appointed to be heard in presence; as also that point, how far the Earl of Home was liable for Ayton's debts; 1mo, Till his heirs of line were discussed; 2do, In regard he had forfeited that estate by accepting the titles of Earl of Home conform to the express quality and condition of the tailzie.
1694. November 18.—The Lords advised the debate between Fotheringham of Pourie and the Earl of Home. The first point was, if the jus mariti was sufficient to carry a conditional obligation granted to a wife, whereof the condition did not exist, nor was purified during the standing of the marriage. Some of the Lords thought the obligation retrotracted whenever the condition was fulfilled, and so belonged to the husband, or to his executors, by virtue of the legal assignation of the marriage. But the plurality carried it in the negative, that the simple jus mariti no more carried this, which fell after the dissolution of the marriage, than the jus relictæ would give her a share of such conditional bonds whenever they came to be purified; and no more than a gift of escheat would carry such a bond whereof the condition existed after the denunciation or gift. The 2d point was, if the bond granted by Ayton to Ogilvie of Muiry, bearing it should be payable, in the event of his want of heirs-male, to the Lady, and Muiry, and his heirs and executors, altered the case, and gave Muiry and his executors a right to it, especially seeing it was the rest of her jointure. The Lords found the bond imported more than the jus mariti did in this case, and gave him right. The Lords also repelled the other two defences, viz. that this debt had tractum futuri temporis, and so could not be moveable; 2do, That a conditional obligation was of the nature of a legacy, which fails if the legatar die before the existing of the condition, and does not transmit to his heir. But law has made a clear difference here, § 4. Inst. V. O. et § 25. Inst. De inutil. stip.
Fol. Dic. v. 1. p. 386. Fountainhall, v. 1. p. 554, & 651.
