One passing by an apparent heir three years in possession, is liable to implement the apparent heir's rational deeds in his contract of marriage.
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The investitures of the estate of Drumpark, standing in favours of heirs male, John Muirhead apparent heir of that estate, anno 1697, in his contract of marriage with Agnes Welsh, proceeding upon the narrative, that he was not infeft, “obliged himself to provide the lands, in case of male children of the marriage, in favours of the female children, and to grant all writs and securities requisite thereanent.” John died uninfeft, leaving a daughter, Agnes, only child of the marriage; whereupon David Muirhead, heir-male of the investiture, passing by John, was served heir to the last infeft, and expede a charter and infeftment; against whom Agnes insisted in a declarator of her right by the said contract of marriage, upon the 24th act, Parl. 1695, her father, apparent heir, having been more than three years in possession.
It was pleaded for the defender, That the act of Parliament respects only onerous debts and deeds; to secure which only, was the act introduced; and as gratuitous alienations are not favourable, in dubio they will never be understood to be comprehended.
It was answered, That provisions and conveyances in contracts of marriage, are both favourable and onerous; so far from gratuitous, that they tie up the husband from making gratuitous deeds in their prejudice; and the words of the act being general, viz. debts and deeds, since it is even a question, whether gratuitous debts and deeds should not be comprehended, there can be no doubt about rational deeds in contracts of marriage.
“The Lords, in regard that John, though not infeft, was three years in the possession of the estate, found the obligement in the contract of marriage binding on the heir-male.”
Fol. Dic. v. 2. p. 40. Rem. Dec. v. 1. No 44. p. 88.*** Edgar reports this case:
1724. February 11. David Muirhead of Drumpark, grandfather to these parties, disponed his lands, in a contract of marriage anno 1671, in favours of his eldest son Robert, his heirs-male, of line, tailzie, and provision.
Robert was infeft upon this right, and John his son succeeded him, but was never served heir to his father, nor infeft. He, in the year 1697, in his marriage-contract with Agnes Welsh, obliged himself to provide the lands of Drumpark to the female children of the marriage, in case there should be no males.
Agnes Muirhead, the only child of John, raised a declarator of her right by virtue of the said contract of marriage, against David Muirhead (grandson to old David by his younger son James) heir-male of the investiture, who passed by John, who had been upwards of three years in possession of the estate, and served himself heir to Robert who was last infeft. Her declarator was founded upon the 24th act, Parl. 1695, whereby it is provided, That if any man, since the act 1661, served or shall hereafter serve himself not to his immediate predecessor, but to one remoter, he shall be liable for the debts and deeds of the person interjected, to whom he was apparent heir, and who was in possession of the lands and estate, to which he was served, for the space of three years.
It was pleaded in defence for David, That the law had no where said, that an apparent heir not infeft, though three years in possession, might alter the settlements made by his ancestors, and convey the lands, in the same manner as he might have done had he been infeft; for that would have contradicted an undeniable principle, that one can transfer no more right than he has; and that an apparent heir, in the naked right of his apparency, cannot by his deed transmit an estate to which he has no right. 2do, That the act of Parliament was intended only for a security of onerous debts and deeds, such as the contracter could have been compelled in his lifetime to have paid or implemented, but could never be extended to provisions in a contract of marriage, which were not to take effect till after his decease; and that the Legislature could not intend that total alienations of estates should be made in such a manner.
It was answered, That the word deeds being expressed in the act of Parliament as well as debts, they must be taken cum effectu, and that none of them were to be looked upon as useless; and whether the word deeds might be extended to such as were gratuitous, the pursuer did not need to dispute, because her case was a provision in a contract of marriage, which was both rational and onerous; and the pursuer did not plead, that the defunct, as apparent heir three years in possession, could make a valid conveyance or settlement of the estate, but only contended, that the obligement by him in his contract of marriage, providing the lands to the heirs-female of the marriage, was effectual, by the act 1695, to compel the defender, as heir in the investiture, to denude in favours of the pursuer.
The Lords found, That by the contract of marriage in anno 1697, the destination was altered in favours of heirs whatsoever; and in regard that John, though not infeft, was three years in possession of the estate, found the obligement in the contract of marriage binding on the heirs-male. See No 66. p. 8955, voce Minor.
Reporter, Lord Kimmergham.Act. Ja. Fergusson, sen.Alt. Ja. Graham, sen.Clerk, Gibson.
Edgar, p. 28.
