Scottish Court of Session Decisions

Subject_1 PRESUMPTION.

DIVISION XV.

Levior Obligatio præsumitur.

The Laird and Lady Airth, and Sir George Hamilton, their Assignee,
v.
Hamilton of Grange and his Tutors

Date: 13 January 1709
Case No. No 320.

An heritable bond was granted by an heiress, and her husband, for his interest, conjunctly and severally, with precept of sasine in her lands only. Thereafter, upon the creditor advancing more money, the husband granted security on his own estate for the whole. Found, that the original debt affected the wife's estate and representatives.

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An heritable bond, in anno 1672, for 22,000 merks, being granted to Douglas and Hunter, by Jean Bruce, Lady Airth, and John Hamilton of Grange, her husband, for his interest, conjunctly and severally, with a precept of sasine in the lands of Airth allenarly; and, in anno 1674, the Creditors having advanced to Grange 7000 merks more, he, with consent of the Lady Airth, his spouse, granted them a security, upon the coal of Grange, for the whole 29,000 merks, by contract, narrating the same to have been advanced to Grange and the Lady for payment of their debts, upholding and advancing their coal and salt-works; and Hunter and Douglas, by their backbond, of the same date with the contract, were obliged to discount and apply their intromissions with the coal and salt in payment of the 29,000 merks, and to grant discharges thereof accordingly to Grange and his Lady. After Grange's decease, the Lady Airth disponed her estate to Richard Elphinston of Calderhall, her second husband, who, upon payment, procured an assignation to the heritable bond of 22,000 merks. The present Laird and Lady Airth, as deriving right from the said Richard Elphinston, pursued Hamilton of Grange, as representing the said John Hamilton, the first husband, for payment of the 22,000 merks, and annualrents thereof from 1674.

Answered for the defender; The 22,000 merks being specially borrowed upon the Lady Airth's account, and the heritable bond granted upon her lands allenarly, he cannot be obliged to pay, except upon his being assigned to the infeftment of annualrent, wherein old Grange was cautioner, that he might operate his relief out of the estate principally bound; 2do, The heritor of the estate principally affected with the said debt, having paid the same, it became extinct by confusion, and the cautioner, or he who was accessorily bound in the personal obligement for the creditors' security, was free.

Replied for the pursuer; This debt must be understood contracted by Grange for his own behoof, and the Lady's obligement but the effect of his influence; seeing they are both jointly bound in the bond, and grant receipt of the money; and the clause granting receipt of the money, with the clause of requisition and obligement to repay, are null quoad the wife, as our law annuls all personal obligements for sums of money granted by wives, who can only burden their heritage; 15th December 1665, Ellies contra Keith, No 191. p. 5987.—2do, Esto the money had been borrowed for the wife's behoof, she being sub cura mariti, it ought to be instructed that the same was so applied; 3tio, The contract 1674 bears, that the 29,000 merks were applied for their joint use, and not for her's allenarly; 4to, The creditors' intromissions with the coal and salt is, by the backbond, to be applied in payment of the whole sum promiscuously, and the creditors were bound, upon payment, to discharge him and her of the whole.

Duplied for the defander; The wife was prima both in obligatione et dispositione; the husband consenting only for his interest. His being obliged jointly with her was but cautionry, and accessory for the creditors' farther security. It is in vain to presume, that the ipsa corpora of the money came to the husband's behoof; because, though it were so, it was a gift, which cannot be evacuated by any coming in the wife's place. Nor is a husband liable qua curator to his wife, to answer for any heritable right acquired from her, to any but herself, in case she revoke. The husband's granting a cumulative security upon his own coal and salt for the money, was the effect of his being formerly bound as cautioner; and a cautioner taking a discharge to the principal has, notwithstanding, relief ipso facto, ex negotio gesto for the principal; yea, may use the creditor's name, or force an assignation for the better effectuating thereof; 8th July 1675, Scrimzeour against Earl of Northesk, No 8. p. 3550.; Stair, Lib. 1. Tit. 8. § 8. The contract of coals, bearing the 29,000 merks to have been borrowed for both their behoofs, is to be understood, applicando singula singulis; viz. that the 22,000 merks were for their behoof, and the 7000 merks for his; and both may, in some sense, be understood for the common behoof, in respect of the several interests of terce, courtesy, &c.

The Lords found, that the 22,000 merks bond is principally and originally the Lady Airth's debt, and that the same does affect the estate of Airth, and the Heirs and Representatives of the Lady, granter of the said bond; and that the defender is not liable to pay the same to the pursuer, as deriving right from the Representative of the Lady principally bound, by whose payment it became extinct confusione.

Fol. Dic. v. 2. p. 164. Forbes, p. 298. *** Fountainhall reports this case:

1708. July 3.—By contract of marriage, passed in Flanders in 1659, made in the Dutch form, betwixt John Hamilton of Grange and Jane Bruce, daughter to Major Alexander Bruce of Airth, with consent of her brother, and Madam Vanneck, her mother, there are 18,600 guilders conditioned in name of tocher, and she is provided to a liferent annuity of 4000 merks yearly, out of the lands of Grange; which contract is signed by the mother, brother, and daughter, but not by the father, though mentioned as an obligant therein. After Grange's death, the said Jean Bruce marries Richard Elphinston of Calderhall, to whom she dispones her lands of Airth, her brother being dead; and he, jure mariti, has also right to eight or nine years of her liferent jointure out of Grange Hamilton's estate, extending to 33,000 merks. There is a pursuit brought against this Grange, on the passive titles, for that great sum of bygone annuities: Against which it was alleged, That the father not having signed the contract, nor the tocher ever having been paid, the jointure (which were the mutual co-respective causes of one another) can never take place; and Jane Bruce being as well bound for implement as her parents, it must compensate the bygones of her liferent, being ob causam datam causa non secuta.—Answered, That both law and provision of parties give wives a jointure, though they bring no tocher with them at all; 2do, It was incumbent on Grange, the husband, as a part of his administration, to exact the tocher, and, if he neglected it, that can never prejudge her.—Replied, The one obligement being the cause and condition of the other, it is impossible that performance can be craved of the jointure till the tocher be first paid, for which there is a notable decision, 7th February 1673, Sir Andrew Dick against Murdoch, No 61. p. 9209. where, in a contract matrimonial, the Lords found the one not obliged till the other performed his part; and this held more in the Roman law, where dos et donatio propter nuptias run parallel. And, as to the second, Where was Grange's negligence, seeing the father did not subscribe it; and, if she was bound herself in the tocher, then she most unreasonably seeks performance, without performing her own part.—Duplied, The synallagma, in contracts of marriage, requires no other perfection or accomplishment, but the solemnizing the marriage; and it is unheard of doctrine in Scotland, that, till the mutual onerous causes be performed, the jointure cannot take place, unless it were expressly pactioned, that the tocher should be first paid, ere the wife have access to her liferent. Again, the wife being in manu et potestate mariti, he has the solum jus exigendi, and his mora cannot prejudge her, who was minor at the time of the contract, and so could never be validly bound for the tocher; and sibi imputet, that he got not her father's subscription; however, he got the rents of the lands of Airth by her stante matrimonio. Some thought this contract being after the Dutch form, it might be fit to know what was the law and custom of Holland in that point. They had a second claim against Grange, viz. a wadset of 22,000 merks, given to one Hunter and Douglas out of her lands of Airth, but for Grange's proper debt, as appears by his setting a tack of his coal to them in farther security, and so crave to affect Grange's estate therewith.—Answered, It appears that this 22,000 merks have been contracted for disburdening the Lady's proper lands of Airth of some incumbrances; for, as the infeftment is granted out of her lands, and not Grange's, so she is both prima in obligatione, et prima in dispositione, first named in both, and so must be presumed her debt.—Replied, The bare stile of the writ can never infer, that the money was in rem versum to her behoof; and in stile, she having lent her credit to her husband forth of her own lands, it could not in form be otherwise, but she behoved to be first named, and the disponer, and illud non agebatur to determine, whether it was the husband's or the wife's debt, et plus valet quod agitur quam quod simulate concipitur.—The Lords thought both the points of that importance, that they deserved to be heard in præsentia.

1709. January 13.—The Lords proceeded to advise the cause between Grange and Airth, mentioned 3d July 1708. And, as to the first point, whether the Lady Grange could claim her liferent jointure out of Grange's estate, till she instructed that her tocher was paid, some urged, That the conception of the Dutch contract-matrimonial seemed to import it was actually then delivered, seeing it bore that the bride brought with her, and did pay the same, which are verba de præsenti. Others argued, That tochers are never paid at the signing of the contracts, but at the solemnization of the marriage, at soonest; and that there was no obligent here for the tocher, the father not subscribing; and that the obligement for the jointure is conditional, and depending on the payment of the tocher. The Lords desired the lawyers to clear if there was numeration or security given at that time, or if it was paid thereafter; or if her succeeding to the land of Airth, by her brother's death, was not equivalent to a tocher, her husband Grange getting not only thereby the jus mariti, but the expectation of the courtesy; and if she did not become debtor in the tocher stipulated in the contract, and so it will compense the bygones of her annuity and jointure pro tanto. As to the second point, whether the 22,000 merks owing to Hunter and Douglas was a debt affecting Grange or Airth's estate, the Lords found it originally the Lady Airth's debt, by the documents produced, the security being given out of her proper estate, and Grange only bound for his interest, as husband, to validate the infeftment to be taken in her lands, and as renunciation of his jus mariti and courtesy.

1709. July 14.—In the cause mentioned 13th January 1709, between Dundas of Airth and Hamilton of Grange, the following point was this day decided. By a minute of contract of marriage, in 1659, at Boisleduc, betwixt Hamilton, then of Grange, and Bruce of Airth's daughter, he is obliged to infeft her in 4000 merks of liferent-jointure; and the bride is to bring with her (according to the Dutch stile) 18,600 gilders, and a house in the Pappinholt. After Grange's decease, she marries Elphingston of Calderhall, during whose time there are several years of her jointure out of Grange's estate owing; and Airth's daughter, as executrix to him, pursues for these bygone arrears. It was contended for Grange, That this process being founded on the foresaid minute, it can never afford this action, that contract being a null, defective, and incompetent paper, not being subscribed by the bride's father, and so no obligant for the tocher but herself, and non constat that it ever was paid; and the one being the mutual cause of the other, she can have no action for her jointure till she prove her tocher was paid, especially when she succeeded to her father in the lands of Airth, and so became liable for the tocher herself. Answered, Either the portion was paid, or it was the husband's fault if it was not; and in several case it has been found, that the not payment of a tocher does not preclude a wife from her jointure. The Lords desiring to see what documents could be adduced in fortification of the contract, to instruct that either the tocher was paid, or security given for the same. Airth produced an account signed by Hamilton of Grange, the husband, in 1662, acknowledging that there was about 8000 merks of the tocher then paid. Item, Several letters of Bruce of Airth's to Grange, after this count, complaining heavily that they had got the whole of the money out of his hands, whereby his daughter and her children were reduced to the utmost extremity; whereas, if he had been so wise as to have kept it in his hand, they would have had something to have looked to for their maintenance; but now they nothing: which clearly proved that a separate security, beside the contract of marriage, had been given to Grange for the tocher; and so no compensation could be founded thereon. It was objected, That Airth the debtor's assertion in his expostulatory letters could never prove either payment or security given for the tocher. The question being stated, Whether the documents produced amounted to a presumption that security was given for the tocher? it carried by the President's casting vote in the affirmative; and so the compensation was repelled.

Fountainhall, v. 2. p. 448. 480. & 515.