Subject_1 HUSBAND and WIFE. Subject_2 DIVISION VIII.
The Wife how far valens agere without concourse of her Husband.
Subject_3 SECT. VI.
Husband bound to do diligence to recover his wife's tocher, unless when due by herself.
Laird and Lady Airth v. Hamilton of Grange
Date: 3 February 1710 Case No. No 272.
Where the wife herself was the only person bound to pay the tocher, she was found to have no action for her jointure, until she performed her part.
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John Hamilton of Grange, and Mrs Jean Bruce, daughter of Mr Alexander Bruce of Airth, with consent of her father and Mrs Ann Van Eik, her mother, having, 22d September 1659, at Teyll, in the province of Guelderland, entered into a contract of marriage, bearing, “That the bride brings with her to the
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marriage, likeas her father and mother do give with her obligations amounting to the sum of 18,600 guilders, with the following conditions and stipulations, in case the bridegroom die before the bride, leaving children of the marriage, she should possess the house of Grange, and enjoy yearly during her lifetime 4000 merks out of the bridegroom's readiest effects; all which the parties contractors promise to perform to each other upon faith and honour, and further, under obligation, submission, and renunciation according to justice,” &c. Which contract is not signed by the Laird of Airth, but only by his wife, the bridegroom and bride, and the friends accompanying them at the marriage. Grange having died before the Lady, leaving children of the marriage, she married Richard Elphingston of Calderhall, who got the estate of Airth disponed to him and his heirs. Elizabeth Elphingston, now Lady Airth, as representing Calderhall her father, with the concourse of William Dundas her husband, pursued Hamilton of Grange, as representing the first husband of Mrs Jean Bruce, the pursuer's mother, for payment of 32,000 merks of bygone jointure due to Calderhall her second husband, jure mariti.
Alleged for the defender, No process can be sustained for the jointure, till it be instructed, that the 18,600 guilders of portion stipulated by the contract as the cause thereof, is paid.
Answered for the pursuer, No tocher is due by the contract; for it doth not bind the bride for it, since it bears only a narrative that she brings so much with her; nor was her father bound, who did not sign the contract.
Replied for the defender, The bride was bound for the tocher, not only by her signing the contract, but also as heir to her father, who was bound. 2do The pursuer, as deriving right from her father, cannot claim the bygone liferent annuities, without paying the tocher, the mutual cause thereof, 9th Feb. 1673. Dick contra Murdoch, voce Mutual Contract; 15th June 670, Raith and Wauchop contra Wolmet and Biggar, Ibidem.
Replied for the pursuer, The implement of a wife's provision doth not depend upon payment of the tocher, July 1665, Mackie contra Stewart, voce Prescription; 11th June 1670, Hunter contra Creditors of Peter, No 2. p. 1687; Stair, Inst. Tit. Conjugal Obligation, § 22; because, though a tocher be an ordinary motive and concomitant of marriage, the completing the marriage is the true cause that makes the provisions effectual. So that arguments drawn from other mutual contracts do not meet the present case; and in none of the decisions cited by the defender, was there a pursuit for jointure, at the instance of a wife, or any representing her.
Duplied for the defender, Though marriage is favourable, yet pacta nuptialia eatenus tantum procedunt, quatenus respondent legibus; and law hath prescribed general rules to all mutual contracts without exception. It is true, Grange might have effectually secured his Lady in a jointure without getting any tocher; as marriage is often solemnized without thoughts of a jointure to the wife; and tochers have been given where the husband had no equivalent to give in jointure; and are frequently due, when the jointure takes no place by the husband's surviving his wife. But since the jointure here was provided in contemplation of a suitable tocher stipulated, tocher and jointure are correlata, quæ mutuo se ponunt, et tollunt, the latter cannot be claimed, unless the former be paid; and far less when the father, who should have paid it, did not sign the contract, and, might resile, whereby there was also locus penitentiæ as to the jointure.
The Lords found, That the pursuer, as heir to her father, is under no obligation to pay the tocher, in respect her grandfather did not subscribe the contract, and there was no separate obligation for the tocher; but found, That albeit the contract is not null for not being subscribed by the bride's father, mentioned therein as a contracter for the tocher; yet the pursuer cannot insist against the defender for payment of the jointure, without paying the tocher, except in so far as the jointure exceeds the tocher. See Locus Penitentiæ.
