Tocher granted in a Contract of Marriage how far presumed in Satisfaction of former Provisions.
John Sydserf v. Archibald Sydserf of Ruchlaw
Date: 12 November 1698 Case No. No 158.
Found again in conformity with Cockburn against Cambusnethan.
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John Sydserf pursues Archibald Sydserf of Ruchlaw, his father, for exhibition and delivery of a bond of 7000 merks conceived in his favour, and left him by his goodsire, and put in his father's hands. And having referred it to his father's oath, he deponed with this quality, that he had received 7000 merks of a legacy left by the grandfather betwixt the said John, and William his brother, (who being dead, his part accresced to John,) and had divided it into two bonds; but when the said John married, in his contract of marriage he gave him 12,000 merks of patrimony, and 4000 merks in houses, which was more than double of the foresaid provision, and so he cancelled the bonds as fully implemented. This oath coming to be advised, it was alleged for the pursuer, That the 7000 merks being peculium adventitium, and not ex bonis paternis, any subsequent provision by the father, in his son's contract of marriage, though greater, cannot be in satisfaction of that debt, and so he was in mala fide to cancel the bonds, and must be liable for the sum; 2do, The bond, with the annualrent from the date to this time, will be more than the sum in the contract; 3tio, The provision there given him is from his elder brother, and his father is no ways debtor in it. Answered to the first, Debitor non præsumitur donare, and though l ult. C. De dot. prom. makes these distinct liberalitates, and all to subsist together, and the one not to be in satisfaction of the other; yet the Lords now, by the constant tract of their decisions, as in the Lord Yester's case against Lauderdale, No 160. p. 11479; and many others, always find, what is given in a contract of marriage must be in full of all former bonds and obligations. To the second, The 7000 merks ceased to bear annualrent, so soon as he had got the provision in his contract, and so it became extinct. The third militates against the pursuer, for the father conveyed the fee of his estate to his eldest son, with the burden of this debt to. the second, and so it still flows from the father. The Lords found the father had paid the debt, and might warrantably cancel the bonds; and therefore assoilzied him from the pursuit,
The addition of two clauses would have prevented the debate on either hand. The first is, If the grandfather had qualified his legacy, that it should be over and above any portion he was to receive from his father, then an indefinite provision would not have extinguished it. Or, 2do, If the contract of marriage had borne in full satisfaction of all former bonds or legacies, in that case there would have been no room for doubting.
Fol. Dic. v. 2. p. 146. Fountainhall, v. 1. p. 14.
