Subject_1 FIAR, ABSOLUTE, LIMITED. Subject_2 SECT. VIII.
Provisions by Parents in contemplation of Marriage of their Children.
M'Clellan and Watson v. Meik
1743.
November2. &
30. Case No. No 53.
Prohibition to alienate, inferred from implication.
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Patrick Erskine, butcher in Dalkeith, by deed in 1729, settled his little estate of three acres and a tenement of houses, upon Jean Erskine his only child, and Robert Meik her husband, in conjunct fee and liferent, and the children of the marriage in fee, which failing, to the said Jean Erskine her nearest heirs and assignees whatsoever; and in the settlement it was declared, “That the said disposition in favour of Robert Meik should not be construed to extend any further than his liferent use only, and that failing of children between him and the said Jean Erskine, it should in that case be lawful and in the power of the said Jean Erskine, to sell and dispose upon the said three acres and tenement at any time in her lifetime, and that without the consent of the said Robert Meik her husband.”
In 1732, Robert Meik borrowed 2000 merks from John Thomson in Newbottle, and Samuel M'Clellan and John Watson became cautioners for him; and, of the same date, Jean Erskine and her husband Robert Meik, upon the narrative that M'Clellan and Watson had become cautioners as aforesaid, became bound to relieve them of their cautionry obligation, and Jean Erskine, with consent of her husband, disponed to them her said three acres and tenement in security, and for their more effectual relief.
M'Clellan and Watson having paid the debt, and taken assignation, they after Robert Meik's death, pursue Patrick Meik his son as charged to enter heir to him, and Jean Erskine as intromitter with her husband's effects; and the heir renouncing, decree cognitionis causa was obtained against him, and against Jean Erskine, on the medium foresaid.
On this decree they led an adjudication of the three acres and tenement; and having pursued a ranking and sale thereof, appearance was made for Patrick Meik the heir, who contended, that by the settlement 1729, the fee in Jean Erskine was limited, that she could not alienate the same by any gratuitous deed in prejudice of her children; and such the disposition granted by her to the pursuers in 1732 was said to be. 2do, Her personal obligation for her husband's debts was ipso jure null, and consequently the real security which is accessory thereto could not subsist.
Upon the 2d November 1744, the Lords, on report of Lord Arniston, found by a considerable majority, “That by the disposition by Patrick Erskine in 1729, in favour of Jean Erskine his daughter, the fee of the lands was established in the said Jean, but that she could not grant the security in anno 1732, in prejudice of the issue of the marriage; and remitted to the Ordinary to hear parties upon the import of the adjudication led against her by M'Clellan and Watson the pursuers.”
And, upon the 30th of said month, the Lords ‘adhered,’ notwithstanding the following reasons for altering. 1mo, That any limitation on Jean Erskine by the settlement 1729 was at best by implication, and that it was both a dangerous and illegal doctrine to sustain implied prohibitions at all. 2do, That by our law, where there is only a prohibition to contract debt, or alienate, without an irritancy, it is never thought to go further than a prohibition to contract gratuitous debts; and that a cautionry is not a gratuitous debt.
3tio, That though a married woman cannot bind herself personally, she may, with consent of her husband, effectually impignorate her heritage in security of such obligation, agreeably to a variety of decisions, Stair, 15th Dec. 1665, Elies contra Keith, voce Husband and Wife; Harcarse, — December 1683, Marshall contra Fergusson, Ibidem; Fountainhall, 2d and 3d February 1686, Somerville contra Paton, Ibidem.
Notwithstanding all which, the Lords adhered as said is, but only by the narrowest majority.
Flo. Dic. v. 3. p. 214. Kilkerran, (Fiar, Absolute and Limited) No 4. p. 193.
