Subject_1 HUSBAND and WIFE. Subject_2 DIVISION VIII.
The Wife how far valens agere without concourse of her Husband.
Subject_3 SECT. V.
Whether a Wife can be cut out of her Interest by lapse of time during Coverture.
Jean Chalmers, Relict of David Lyon of Banchrie, v. His Creditors
Date: 25 July 1710 Case No. No 265.
A relict raised a reduction of her contract of marriage, upon minority and lesion. Objected, she had not revoked and raised reduction intra annos utiles. The Lords repelled the objection, she having timeously after the dissolution of the marriage raised the reduction.
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Jean Chalmers, heiress of the south part of the lands of Wester Banchrie, and the mill thereof, yielding seven chalders of yearly rent, some months after her marrying David Lyon, without any contract, when she was about 15 years of age, entered with him into contract, whereby she disponed her heritage in favour of him and her in conjunct-fee and liferent, and the heirs and bairns to be procreated betwixt them in fee: and he obliged himself to provide 6000 merks of his own money, with the conquest during the marriage, to him and her, and the longest liver in conjunct-fee and liferent, and the heirs and bairns of the marriage in fee; providing, that it David Lyon happened to die before Jean Chalmers, without children, she should not only liferent the 6000 merks and her own heritage, but have power to dispose of four of the said 6000 merks; but in case of her surviving him, with bairns of the marriage, she restricted herself to the liferent of the 6000 merks, and the conquest; and if David Lyon happened to outlive her without children of the marriage, she had power to dispose of her heritage, without prejudice to his courtesy. David Lyon having died obæratus before his wife, leaving children of the marriage, she, to hinder his creditors from carrying away her fortune, raised reduction of the contract of marriage upon, 1mo, The ground of minority and lesion, seeing the husband could not authorise his wife in rem suam; 2do, As being donatio inter virum et uxorem.
Answered for David Lyon's Creditors, 1mo, As minors can marry without consent of curators; so they can enter into contracts in contemplation of marriage; and the pursuer cannot be allowed to reduce upon minority and lesion, because she did not revoke intra annos utiles. 2do, The disposition by the wife is not a revocable donation, because, there being no prior contract of marriage, it was for an onerous cause, 24th November 1664, M'Gill contra Ruthven of Gairn, Div. 10. Sect. 3 b. t. There was no lesion, the terms of the contract being equal and rational as matters stood at the time; and no supervening alteration in the husband's circumstances, which disappointed the wife's expectation by the settlement, can be a ground of restitution.
Replied for the pursuer, 1mo, She was certainly lesed, in not only quitting the fee of her estate, but also in excluding herself from the very liferent thereof, for an uncertain provision secured only by the husband's personal obligement, which is come to nothing. Besides, the condition that she should liferent her own and her husband's means, and have some power of disposal, is of no weight; seeing it depended upon an uncertain event, neither to be presumed nor desired, viz. the non-existence of children, which are the chief end of marriage. And there are not wanting decisions, where the Lords have reduced such contracts of marriage; witness that betwixt Castlehill and his Lady, who was afterwards married to Mauldsley, voce Minor; and that betwixt Alexander Reid and Anna Byers, No 249. p. 6045. As to the practick M'Gill contra Ruthven, the lesion there did not appear so considerable, the wife being provided to a competent effectual liferent; besides, it makes against the defenders, for the Lords restored to her the liferent of certain sums assigned by her, without reserving her own liferent. 2do, The pursuer's not revoking, and raising reduction intra annos utiles, can be no reason to exclude her pretensions; because she timeously after dissolution of the marriage revoked and raised reduction of the deed; and she was not valens agere during the marriage, being then as a minor sub cura et reverentia maritali.
The Lords sustained the reason of reduction founded on enorm lesion, to repone the pursuer to the liferent of her own heritage disponed by the contract; but repelled the allegeance of donatio inter virum et uxorem. See Minor.
Fol. Dic. v. 1. p. 407. Forbes, p. 432.Fountainhall reports the same case:
July 14. 1710—Jean Chalmers, being heiress of the lands and mill of Wester Banchrie, she about the age of sixteen, marries David Lyon, chamberlain to my Lord Strathmore, without the knowledge of her mother, who was then alive; and, about nine months after the marriage, there is a contract drawn up, wherein she dispones to him the lands nomine dotis; and he, in compensation, obliges himself to have in readiness six thousand merks of his own means, and to take it to her in liferent, and to the bairns in fee, but does not provide her to the liferent of her own lands, but gives her the liferent of the half of the conquest. The husband being in great debts, and unable to satisfy them out of his own means, he gives his creditors infeftment out of the land she got by his wife; and coming to die, and leaving children, his wife can findno effects of her husband's out of which to take her liferent; and the creditors entering to her lands, and debarring her, she raises a reduction of her contract of marriage on these two reasons; 1mo, That it being entered into posterior to the marriage, it was donatio inter virum et uxorem stante matrimonio, and so revocable by her; 2do, That it was done by her in her minority, to her enorm lesion, and in a most clandestine manner, without the advice of her mother, or any of her friends, and deprived her of the property of her own lands, without so much as reserving the liferent thereof to her, but disponing the same to his creditors, so that he has left nothing to her to affect, except it be what came by herself. Answered for the creditors, to the first reason, This can never be called a donation stante matrimonio, but has all the privileges of a contract entered into before the marriage. To the second, Her minority is no reason; for minors can lawfully marry without consent of their curators, and can dispone their means in a contract of marriage, especially if there be suitable conditions restipulated to them on the otherside, which is the present case; for the heritage being but six or seven chalders of victual, was no more but a competent tocher if converted into money, and 6000 merks, with the half of the conquest, was no contemptible retribution; and the case of lesion is not to be considered, as now it eventually occurs by the husband's dying in bad circumstances, but must be calculated as matters stood at the time of the contract, the terms being both fair and equal, law having fixed no standard what shall be the precise quota of heiresses liferent, but just as parties paction, as appears by the decision 24th November 1664, Macgill contra Ruthven of Gairn, Div. 10. Sect. 3. h. t. Besides, reduction on minority and lesion must be intented intra annos utiles, which this pursuer did not, being past 25 before she revoked and raised this reduction. Replied, There was no need of a revocation here intra quadriennium utile, for the deed was ipso jure null, the husband being curator to his wife, and so could never authorise her in rem suam; and there is nothing more easy than to frame narratives and equipollent prestations on the husband's side, as obliging himself to lay as much for-gainst the tocher, when in reality he has it not to secure her in it. Specious prestations may be stipulated where there is no subject to make it effectual, but only to be a sham color quæitus to amuse and defraud the wife, and it was really so here; for his 6000 merks was an imaginary provision no where to be found but in Eutopia; neither is this doctrine new, for on such inequalities did the Lords rectify and reduce the Lady Castlehill's contract, at the instance of Carmichael of Maulsly, her second husband, in 1697, voce Minor; and lately, on the 28th July 1708, Anna Byres contra Reid, No 249. p. 6045., they reponed the wife to her own lands, the husband being obæratus and fled the country.
The Lords repelled the first reason, and found it no donation; but sustained the second of enorm lesion, and therefore admitted her to liferent the lands she brought with her: but whether the fee of them would belong to her children, or to her husband's creditors after her death, was not decided; though he Lords seemed to think the last would have the best right thereto.
Fountainhall, v. 2. 586.
*** The following case is the sequel of the above.
