Pure Donation how far Revocable. Donation after Proclamation of Banns.
Margaret Maclellan, Relict of Hugh Hathorn, v. The Children and Executors of Hugh Hathorn
Date: 22 December 1758 Case No. No 312.
A wife having succeeded to a debt secured by adjudication, discharged the debtor upon his paying part in cash to her husband, and granting bond to him for the remainder. Upon her husband's death, she revoked these deeds; and it was found, that she was a creditor for the sum paid to her husband, and that the bond was her property.
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Upon the 4th July 1720, Margaret Maclellan, by contract of marriage, conveyed to her husband, Hugh Hathorn, in conjunct fee and liferent, and to their children in fee, her portion, amounting to about L. 1000 Scots.
Some years after the marriage, Margaret Maclellan succeeded, as heir to her brother, to a debt of L. 3129: 8s. Scots, secured by adjudication, with interest from 1727; to which she made up titles by granting a trust-bond; upon which adjudication being led, the trustee reconveyed it to her, and her husband, for her interest.
Upon the 31st December 1754, with consent of her husband, she executed a discharge and assignation of this debt in favour of the debtors, who made payment of L. 2644: 8s. Scots to the husband, and granted bond to him for L. 4800 Scots, which was the balance, though the bond was expressed simply for borrowed money.
After her husband's death, she executed a revocation of these deeds, so far as they might be construed to have conveyed any right in favour of her husband, and brought an action against his children and executors, for payment of the L. 2644: 8s. he had received, with interest from the time of his death; and also to have it declared, that the bond for L. 4800, with the interest from the same time, belonged to her. A proof was allowed, and several witnesses deposed, that the husband actually received the L. 2644: 8s., and that the bond for L. 4800 was granted for the balance of the heritable debt, to which the wife had succeeded as heir to her brother.
Pleaded in defence, 1mo, That where an heritable bond is discharged by a wife, and converted into cash, not with a view of being again lent out and preserved from the husband's jus mariti, it becomes the immediate property of the husband, in virtue of the legal assignation implied in marriage; and is not to be considered in the same light as a donation, revocable by the wife. This distinction was established by a decision observed by Lord Fountainhall, 12th February 1686, Lady Garvall, No. 35. p. 5795.
2do, As the debt to which the wife succeeded as heir to her brother, consisted of L. 3129: 8s. of principal, contained in an adjudication, upon which interest was due from the year 1727 to the 31st December 1754, when it was discharged by the wife; supposing the wife entitled to revoke, yet her revocation could have no effect with regard to the interest due for these years, which, at any rate, belonged to the husband by his jus mariti.
Answered, There is no reason for a distinction between the case of a donation directly made by the wife, and the giving of a sum of money to her husband indirectly, as happened in this case. Nor was any such imaginary distinction established by the decision referred to; for, in that case, the wife had brought no other portion, except the heritable debt.
2do, The annualrents due upon a sum adjudged for, are considered as equally heritable with the principal debt; because an adjudication is considered as a sale under reversion, redeemable by payment of the principal sum and annualrents. And accordingly it was found, in the case of Ramsay contra Brownlee, 1st December, No 6. p. 211, that no part of the growing annualrents of a sum adjudged for was moveable, or did belong to an executor.
“The Lords adhered to the Lord Auchinleck's interlocutor, finding, That the bond for L. 4800 was a surrogatum in place of part of the wife's heritable subject, and did therefore belong to her; and that she was also a lawful creditor for the L. 2644: 8s. received by her husband, with interest upon both sums from the time of her husband's death; and decerned.”
Act. Johnstone.Alt. Montgomery.
Fol. Dic. v. 3. p. 286. Fac. Col. No 153. p. 273.
