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.
Euphame Cuningham v. Alexander Cuningham of Cullellan
Date: 27 January 1704
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By contract of marriage, in 1658, betwixt Mr William Cuningham, Minister at Kilbride, and Euphame Cuningham, Mr William is obliged to employ as much of a principal sum as will pay, conform to the Acts of Parliament, 500 merks yearly, for her liferent-use, in such sort that she may be secured therein during her life. Her husband dying in 1669, his heirs and executors stock a sum, in sundry debtors' hands, of 8333 merks, as corresponding to 500 merks, for her liferent, use, at 6 per cent, and whereof she receives payment. But retention of annualrents being first introduced by the Act in 1672, on this ground, That cess, and other public burdens, affected the land-rent, and the personal estates of monied men went free; therefore, to make some equality, debtors were first allowed, retention of a sixth part, in 1672, 1690, 1695, and 1697, and then of a twelfth part ever since. And the said Euphame finding this to diminish her liferent of 500 merks, which, by the conception of her contract foresaid, she alleged, must be a net and free annualrent of 500 merks yearly, not subject to retention or any burden whatsomever, she raises a process against Mr Alexander Cuningham of Cullellan, her husband's heir, for payment to her of 396 merks, as the retention he has kept off her these years bygone, on this ground, That her annualrent was liable to no such retention; and therefore he, as heir, ought to refund and make up the same to her; and to hear and see it found and declared, that her liferent can bear no retention in time coining; but that her 500 merks ought to be paid full and entire without any such deduction.
Answered,—That he has implemented the clause of her contract, by securing her in as much of a principal sum as pays 500 merks yearly: and if, by a supervenient law, annualrents come to be lessened and diminished, none can be presumed to have given warrandice against such events as were neither prœvisa nor cogitata. At the time of the said contract there was no retention, nor for sundry years after; and she must take her hazard as all the other lieges do; and this is to make the ease given to debtors, by the Acts of Parliament introducing retention, elusory.
Replied,—The pursuer is in a special case; for it is confessed, if her 500 merks had been made relative to a specific sum, and a stock named, then it would have been liable to retention; but here it is expressly provided, that she must be secured in such a principal sum as will pay 500 merks, without defining the sum to 8333 merks; so that, if the 8333 merks will not pay 500 merks, because of the retention of a 6th or 12th part, then the stock must be proportion-ably augmented to make up that sum. And, put the case, that the annualrents had been cried up to eight or ten in the hundred, she would have got no benefit by that exaltation, but Provost Cuningham would have forced her to be content with the 500 merks; and so, a pari, the annuals being diminished, she must not be thereby prejudged: for cujus est commodum, is debet et sentire incommodum; et pacta sunt interpretanda contra proferentem, especially in re matrimoniali, quœ sunt uberrimœ fidei: and therefore an effective stock must be secured to her, productive of 500 merks free. And, though there be no warrandice against public laws, yet paction can over-rule these cases; and it is not usury to take the full annualrents, if paid, but only obliges them to restitution if redemanded and the retention be claimed.
The Lords found, by the conception of this contract, her liferent was not in the common case (where generally they suffer retention, being relative to a sors and principal sum;) and found it not liable to retention.
Then alleged,—That she had homologated the same, by granting discharges, allowing and deducing the retention. Answered,—What was per errorem paid or remitted, may, condictione indebiti, be repeated; neither can that import a discharge of the right founded in her contract of marriage.
The Lords thought, however these discharges might preclude her quoad the years when she had allowed it, yet it could not as to others, and ordained them to be farther heard as to that point,
