Subject_1 FIAR, ABSOLUTE, LIMITED. Subject_2 SECT. VII.
Husband's power of disposal over Tocher provided in a Contract of Marriage.
Kennedy v. Lyal
Date: 27 January 1698 Case No. No 49.
Found as above.
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A competition arising between Sir Thomas Kennedy and Jean Lyall, for the mails and duties of some tenements in the Pleasants; Sir Thomas having adjudged the same from John Dawling her husband, her ground of preference was, the houses originally came by her as heiress to her father, proprietor of the same; and by the contract of marriage, whereby she dispones them to Dawling, he is with the same breath obliged to infeft her in a liferent of 400 merks yearly, forth of these houses, and a tenement he had in Leith; and the one being the mutual cause of the other, his creditors cannot carry away the lands without first they secure her jointure, as he was obliged to do himself, the contract being a synallagma, and the obligements properly mutual causes each of the other. Answered, Though the contract runs in these terms, she dispones the lands simply and absolutely to her husband, and then it bears, ‘for the which causes he obliges him to infeft her in the said annuity,’ which is merely a personal obligement, wherein the husband's singular successors are no way concerned, unless the disposition had been conditional, or expressly burdened with her liferent; and this conception can no more bind his creditors than if she had assigned her tocher, consisting of a bond of borrowed money, and the husband's assignee craving the same, the wife could never stop the payment on the pretence that she must be first secured in her jointure.——The Lords found the obligement but personal, and preferred Sir Thomas the creditor.
Fol. Dic. v. 1. p. 310. Fountainhall, v. 1. p. 817.
