Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 I sat in the Outer-House this week.
A Creditor of Ker of Lochinches v. Mary Ker, his Relict
Date: 13 November 1703
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A creditor to Ker of Lochinches pursues Mary Ker, his relict, on the passive title of intromitter, for payment of his debt.
Alleged,—Any intromission she had was by virtue of a disposition from her husband to his haill moveables. And the disposition being now produced, it was
Objected,—That the same bore not to be for implement of the provision contained in her contract of marriage, but purely for love and favour; and so was donatio inter virum et uxorem, and could not prejudge a lawful creditor, and should have been confirmed before her intromission.
Answered,—She only used the disposition to connect it with her contract; and whatever was its narrative by mistake, yet truly it depended upon the antecedent onerous cause of her matrimonial provisions, and must be drawn back ad suam causam, to support her contract.
The Lords found the disposition a sufficient title to purge vitiosity, so as not to be universally liable; but found she behoved to pay him usque ad valorem of her intromission, seeing they could not redargue so plain a narrative, nor turn it to be onerous, against its express words; and that she ought to have confirmed herself executor-creditor on her contract of marriage and disposition. Yet see Stair, 26th January 1669, Chisholm against Lady Brae; where the Lords sustained a tack to a wife as a remuneratory donation to make up the defects of her contract of marriage, though the tack bore only love and favour. But the Creditor's case was more favourable here, that the Lady Lochinches was in peaceable possession of her jointure-lands; and the Creditor did not quarrel her on that head, but only for her superintromission; which she ascribed to a clause of conquest in her contract-matrimonial. But the Lords found her liable, in so far as her intromission exceeded her jointure, on the grounds aforesaid.
