A lady and her husband purfued for her tocher, contained in a bond of provision having this condition, that she should marry with consent of certain friends, otherwise the bond to be null. The marriage was without disparagement, yet the nominees dissented. The defender pleaded for a restriction of the tocher to a sum equal to the lady's legitim; but the whole tocher was decerned for.
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William Buntin, son to the Laird of Airdoch, having married Jean Buchanan, daughter to Drummakill, he pursues Archibald Buchanan of Drummakill, her brother, for payment of 5000 merks contained in a bond of provision given to her by her father.—Alleged, She has forfeited her right, because the bond contains an express quality, that his daughter shall marry with the special advice and consent of George Lindsay of Blackshome, and John Cuninghame of Ballindalloch, otherwise her bond to be void and null; but so it is, she never required their consent; but, on the contrary, they dissented; and this tocher being a donation, it may be given with what qualities and conditions the donor pleases; and if not obeyed, the quality ceases, tot. tit. C. de donat. sub modo et condit.—Answered, That marriage is favourable, especially when with their equal without disparagement, (as this was) and any restrictions and limitations whereupon are commonly rejected as contra libertatem matrimonii, and Ballindalloch, (who was only on life of the two nominate,) has since the marriage declared his acquiescence, and that he has nothing to object against it, so that his ratihabition comparatur mandato; and such provisions are not pure donations, but are the effects of a pre-existent obligation from the laws and ties of nature; and whatever creditors may say against them, yet they are always good against the granter's heir; and such clauses have been oft repudiate, as inutiliter adjecta, and was so found, 3d Dec. 1680, Fetterneer contra L. Semple, No 27. p. 2969.; and in 1681, Hamilton of Monktonhall contra Baird of Saughtonhall, No 28. p. 2970. where the clause was not intimated to the daughter, nor shown to the daughter, nor shown to her before her marriage, the bond never being in her custody, but in the hands of a friend. Provisions to children are juris naturalis, and not to be forfeited upon latent clauses, but only where there is evident contempt and contravention, but here ignorantia invincibilis plainly excuses her.—Replied The Lords have not extended these irritant clauses about marriages without consent, to annul the provision in toto, but only to restrict them to a moderate and reasonable tocher, corresponding to what would befal them as their legitim and portion natural, and Drummakill pleads it no farther, but that the Lords may consider the condition of the fortune, and the debts affecting the same, and they will find this a most exorbitant provision; and all that is craved is, that it may be reduced quoad excessum, and brought to a just equality. And as to her ignorance, it is offered to be proven she knew the terms of her father's bond; and Ballindalloch's consent ex post facto is of no import; for he who justly refused his consent before the marriage, when the thing is done without his concourse, what is the remedy but to make the best of an ill bargain they can?——The Lords repelled the defence, and found Drummakill liable in the whole tocher, and refused to modify it. If she had married to a turpis persona, or with great disparity, the Lords would have taken it to consideration.
Fol. Dic. v. 1. p. 190. Fountainhall, v. 2. p. 584.*** Forbes reports the same case:
William Buchanan of Drummakill having, by his bond, provided 5000 merks to his only daughter Jean, she marrying by advice and consent of George Lindsay of Braxholm, and John Cuninghame of Ballindalloch, or any of them that should be alive at the time, and that the bond should be null in case she married without such consent; William Buntin, husband to Jean Buchanan, as assignee by his contract of marriage, pursued Archibald Buchanan, as representing William his father, for payment of the provision.
Answered for the defender; Because marriage is favourable, and our law and custom hath taken some liberty in annulling all restrictions thereof, he doth not quarrel the validity of the bond, quantenus it can be thought a reasonable provision, but only quoad excessum, in so far as the father, out of his anxious desire of a good marriage to his daughter, hath given her tocher far above what his circumstances and the condition of his fortune could bear; which being a pure donation, is not to be paid but upon precise performance of the conditions thereto adjected, L. 4. C. de Donat. quæ sub modo; and so it is, that the said Jean Buchanan married the pursuer, without the previous consent of any of the nominees, whereby the irritancy in the bond was incurred.
Replied for the pursuer; Such clauses irritant are unfavourable and held in law pro non adjectis, especially where the child, (as in this case) doth match with her equal in quality and fortune; and Ballindalloch, the only surviving trustee named by the father, hath judicially declared that he hath nothing to object against the match; 2do, The clause cannot militate against the pursuer, unless it had been intimated to his wife before her marriage, Laird of Fetterneer contra Lord Semple, No 27. p. 2969. Hamilton and Baird of Saughtonhall, her husband, contra Hamiltons, No 28. p. 2970.; 3tio, The allegeance that the provision exceeds what the granter's estate could then allow, is frivolous; for it is expressly contrary to the narrative of the bond, bearing, That it had pleased God to bless him with a fortune, and that it was just and reasonable that his children be competently provided with such moderate provisions as his estate is able to bear; and the father knew best his own condition.
Duplied for the defender; Narratives in such kind of writs, being only stile of course framed by writers, do no prove the design of the granter; and seeing the most that can be inferred from the narrative is a presumption, that must yield to truth: Nor could Ballindalloch's, approbation ex post facto import that he would concur to the deed if it were yet to be done; but only that, since what is done cannot be retrieved, he would agree and make the best of what cannot be helped.
The Lords repelled the defence, and found, that the clause irritant in the bond, is not relevant to infer a restriction of the sum.
