A clause prohibiting a wife from alienating or burdening her jointure, without consent of certain persons, found no bar, upon entering into a second marriage, from disponing her jointure to trustees, for behoof of herself and children, in exclusion of the jus mariti.
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Mrs Isabella Somerville, relict of Mr Hugh Murray advocate, being about to contract a marriage with Mr Charles Murray of Stenhope, who had obtained a decreet of cessio bonorum against his creditors; in order to obviate their affecting her estate, assigned it to trustees for the aliment of herself and family; and Mr Murray, by the same deed, accepted a liferent in name of an alimentary provision for him and his family, in case of her death, “in full satisfaction to him of all claim competent to him by law, or out of the means of Mrs Murray, in and through the intended marriage any manner of way.”
The marriage being celebrated, Sir James Dalrymple of Newhails, on whose estate the Lady's jointure was secured, refused to pay it to the factor appointed by the trustees with her consent, and presented a bill of suspension, in which he pleaded, That he could not pay safely, unless Mr Murray concurred in the discharge, for that the jus mariti could not be renounced effectually, the very benefit accruing to the wife by the renunciation falling under that right, and so reverting to the husband, in consequence of the marriage. Here was no real alienation of Mrs Murray's interest, the whole being in trust for herself, and her husband became her assignee by the marriage to the benefit of that trust.
Answered, This doctrine might have been listened to a century ago, but later practice has exploded it; and the Lords found, 23d June 1730, Walker against her Husband's Creditors, That a husband might, in his contract of marriage, renounce his jus mariti, and that the reservation therein contained, though not exerced by the wife in favour of any third party, did not fall sub communione; and they found the same in a later case, between Hugh Campbell tobacconist in Edinburgh and his Wife. (See These cases voce Husband and Wife.
2dly, Pleaded for the suspender; by an express clause in the contract of marriage between Mr Hugh Murray, the Lady's first husband and her, repeated in the bond, by which Sir James is burdened with the payment of her jointure, she is tied up from alienating or burdening it, or any part thereof, without the express consent of certain persons therein named; and any alienation made by her, without such consent, is declared null; and therefore the trust-deed being made without their consent, has no effect, but the subjects remain still in her, and fall under the jus mariti.
Answered, This reason of suspension is not consistent with the former allegation; that there was no alienation; which is indeed so far true, that it was only an alienation in form, but not in effect; and therefore no consent was necessary. And if no deed had been done, it may be guessed from this suspension, that it would have been objected, that as it was not in Mrs Murray's power to make any assignation, the legal one by the marriage could not take effect; and therefore the money would have been refused to have been paid in that case to her husband, as in this it is to the factor.
The Lords refused the bill.
One of the Lords observed, That Mr Murray being a party to the deed, the factor was appointed with his consent; and therefore there was no place for all these questions. See Husband and Wife.
Reporter, Lord Minto.
Fol. Dic. v. 3. p. 127. D. Falconer, v. 1. p. 64.
