Reduction of Alienations made by Bankrupts where the Reducer has done no Diligence.
Subject_3 SECT. X.
The Onerosity of Provisions in Favour of a Wife.
George Lockhart of Carnwath v. Euphan Dundas and Mr John Dundas of Philpston, her Husband
Date: 14 January 1714 Case No. No 74.
A wife assigned the price of lands to her husband by contract of marriage, as tocher. He contracted for suitable provisions to her and her children. The assignment found not reducible upon the act 1621, at the instance of an anterior creditor.
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George Lockhart of Carnwath, in January 1693, obtained a decreet against Katharine Swynton, daughter and heir of George Swynton of Chesters, and David Dundas of Philpston, her husband, for his interest, for payment of L. 1000 principal, annualrent and penalty, contained in a bond granted in anno 1680, by the Lord Mersington as principal, and the said George Swynton, his brother, as cautioner, to Sir George Lockhart, President of the Session, the pursuer's father. The lands of Chester, then affected with a liferent annuity of 600 merks, in favours of Euphan Brown, Katharine Swynton's mother, being sold to a third party for 12,000 merks, there was a contract of marriage perfected, 20th December 1693, betwixt the said David Dundas and Katharine Swynton, whereby the husband got the 12,000 merks, the land's price, in name of tocher, to be aplied for payment of his debts; in recompence whereof, he secured his wife in a liferent annuity of 8 chalders of victual, out of his own estate of Philpston, and Euphan Brown his mother-in-law, another annuity of 600 merks, in lieu of the equivalent renounced by her out of the lands of Chester, and disponed his estate with these burdens to the heirs male of the marriage, and provided the daughters to L. 1000 Sterling; which contract expressly referred to marriage articles formerly communed upon. No diligence having been done upon the decreet against David Dundas, as husband to Katharine Swynton, stante matrimonio; Carnwath pursued Euphan Dundas his heir, and Mr John Dundas her husband, for payment of the sums decerned, upon these grounds; 1mo, That David Dundas was lucratus by the marriage with Katharine Swynton. 2do, Seeing Katharine, as heir to her father, was liable before the marriage for the debt claimed by the pursuer, she could not stante matrimonio dispone, or her husband, a conjunct person, accept of a right to the price of her lands, in prejudice of an anterior lawful creditor; therefore the pursuer repeated a reduction of the said fraudulent deed, upon the act 18th, Parliament 23d, James VI (1621.)
