Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Mary Gray, Lady Edinglassie, v. Sir John Gordon of Park, &c her Curators.
1694.
February16 and
July11.
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February 16.—Mary Gray, Lady Edinglassie, against Sir John Gordon of Park, and her other curators, for making up her damage, in not securing her in her jointure upon her contract of marriage. The Lords thought it would be hard, and dangerous, to overtake curators on such nice omissions; seeing they are bound to act, in their minor's affairs, as rational provident men do in their own. And, seeing they had consented to dispone her tocher of 25,000 merks to her goodfather, Sir George Gordon of Edinglassie, and had nominated no friends, at whose instance execution should pass, for implementing the contract to herself and her children; and, though they had inserted a procuratory of resignation, yet there was no precept of seasine on which she might have been summarily infeft, and afterwards confirmed that base seasine: therefore, they ordained the curators, subscribers of her contract, to expede her infeftment presently, on the procuratory of resignation foresaid, conform to the new Act of Parliament 1693, on their own charges and expenses; reserving to themselves to consider, how far they may be made liable for her damages, in the same process, if her infeftment prove ineffectual, or if she happen to be debarred by preferable rights, by eviction or otherwise.
Vol. I. Page 610.
July 11.—Lady Edinglassie against Sir John Gordon of Park, and her other curators, mentioned 16th February 1694. They proponed another defence, That they could not be liable to make up her damage; because she was not lesed by the contract of marriage, being null; so that she may recur against her debtors in the tocher, and recover it: because, by her act of curatory, three is a quorum; and, though there be three curators subscribing this contract, yet one of them must be subduced, and cannot be one of the number,—viz. Sir John Gordon of Edinglassie, the husband's father; because, though he was a curator, yet he acted here in the capacity of a disponer, and takes burden for his son to implement the provisions for his son, both to the Lady and her children, and the tocher is assigned to him; so, his subscription being discounted, there are but two curators signing; and so the deed is null, and not binding on her: and she may recover her tocher assigned; and so has no lesion, and, consequently, no recourse against her curators.
Answered,—It is noways competent to you to object against your own deed; and however it were null, you cannot say it, who made me engage in that contract, and consented with me.
The Lords found the defence not relevant to liberate him from being liable in warrandice, to secure the Lady's jointure, which they had neglected to do,— neither putting in a precept of seasine, nor parties, at whose instance execution should pass; and he, being the husband's uncle, had drawn on the marriage, and left her insecure. But, as to the conclusion of refunding the tocher, the Lords assoilyied the curators from that; seeing the articles and terms of the contract were equal, just, and rational enough, if they had been fulfilled; and they would not too much over-burden nor discourage curators. As also, the Lords rejected that conclusion, anent making the curators liable to secure the fee to the heir-male of the marriage; both in regard that it was but a mere destination, and that they were not curators to the children, who were not then in being.
