A party having become bound in his contract of marriage, to infeft the heir-male in the fee of his lands, with absolute warrandice and assignation to mails and duties, was found obliged to do so, before receiving a part of the tocher, which had remained unpaid.
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In a contract of marriage betwixt Mr Sutherland and Aldie's daughter, Mr Sutherland became bound to infeft the heir-male of the marriage in the fee of certain lands; and this contract contained clauses of warrandice and an assignation to mails and duties after his decease. On the other part, Aldie stipulated a certain sum in name of tocher with his daughter payable at three different terms.
The marriage dissolved by the death of the wife, but there existed a son procreated of it; and some part of the tocher being unpaid, Mr Sutherland brought an action for payment against Aldie; for whom it was pleaded in defence, That the obligations in the contract were mutual; and Mr Sutherland not having implemented his part, by infefting the heir of the marriage in the lands contained in the contract, the defender could not be liable in payment of the tocher which he had stipulated.
To which it was answered, That there could be no immediate resignation, because though there did exist a son of the marriage, yet he could not with any propriety be said to be the heir-male of it, since his title as such depended upon the predecease of his father.
Replied for the defender, That it appeared from the contract, that the pursuer was obliged to denude himself of the fee in the most express terms, having bound himself “to infeft the wife and heir-male in liferent and fee of the lands; to grant, subscribe, and deliver to them sufficient charters containing precepts of sasine, upon his own proper charges; to warrant the infeftments and lands to be good, sufficient, and free from all prior infeftments, inhibitions, adjudications, &c. at all hands and against all deadly. He assigned them to the mails and duties of the lands after his own decease, and to the whole writs, evidents, and securities of them.” From the whole tenor of which contract it was plain that the father only reserved his liferent. To allege that in this case it could not properly be said that there was an heir, since the father was still alive, was nothing but a quibble; for the marriage being dissolved, and a son existing, it most certainly and undoubtedly appeared who was the heir-male of the marriage. That it was a duty incumbent on the grandfather to see his grandson get justice, and to prevent the dilapidation of the estate, before he could be obliged to perform his reciprocal part of the contract.
The Lords found, That Mr Sutherland ought to resign the lands in favour of himself, and, failing of him, in favour of his son nominatim in fee, with absolute warrandice and assignation to mails and duties, as mentioned in the contract, before payment of the remainder of the tocher.
Act. Alex. Hay.Alt. Jo. Forbes.Reporter, Lord Polton.Clerk, Gibson.
Edgar, p. 20.
