Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 HOMOLOGATION.
Subject_3 When challenge of an Entail, for limiting a fee destined to the pursuer in a contract of marriage, is excluded by homologation.

Sir Alexander Mackenzie of Gairloch
v.
Hector Mackenzie and His Tutor

Date: 25 November 1768

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[Faculty Collection, IV. p. 298; Dictionary, 5665.]

Kennet. There are two points, power and homologation. The Court has always avoided determining the first point. Homologation seems plain by the entail upon record, which must have been known to the present pursuer.

Monboddo. The only provision to Sir Alexander, by the contract 1755, was upon a narrative of the entail.

Pitfour. As to the first point, I do not say but that a father may make an entail notwithstanding a marriage-contract. Yet I do not think that he can make an arbitrary entail. A father, in such circumstances, may make a rational entail; but I never saw any such made. It must be of a large estate which can admit of an entail, and a power to provide a wife and children must be left. Here the entail is irrational, because the provisions to children are too small.

The first entail, made in such circumstances, that was sought to be reduced, was that in the case of Gordon of Achlyn; and yet 40 years had then elapsed after the statute authorising entails; and most entails had been made by married men. The reason was, the sons liked the entails as well as the father did, because the fathers were thereby prevented from dilapidating the subject. But here, as to the second point, Sir Alexander homologated. He must have known of the marriage-contract 1730, and also of the entails.

Kaimes. I doubt as to homologation. I do not like the plea. Sir Alexander was in his father's power. He had no bread. This is like the homologation of an heir apparent to the death-bed deeds of his predecessor. If any deed had been done in order to ratify, this would have been good; but there is no such deed here. The entail is only mentioned by the way. Possibly young Sir Alexander did not know that he had power to call the entail in question. A man cannot give up a right which he does not know. At the same time I would hesitate to reduce the deed altogether.

Coalston. Homologation is an arbitrary question. Before we find that a man homologates, we must be satisfied that he knew whatever ought to have been known respecting the matter homologated. That there was, for instance, a marriage-contract, and that he had right by that marriage-contract. As to the general point, I have great doubts.

Gardenston. There never was a rational, if a strict entail. I do not think that there was any homologation here. Here the son is only described, narrative, as heir of entail.

Justice-Clerk. I cannot presume that in this case the young man had any idea of his mother's marriage-contract, or that, in the contract 1755, he meant to renounce his jus quœsitum.

Coalston. The pursuer's prevailing in the reduction would not free him from the obligations in the marriage-contract.

Justice-Clerk. I now see the question in another light. There were first articles, and then a marriage-contract. The bride's friends must have known the entail and contracted upon the faith of it.

Auchinleck. Here it is not a question between father and son, but between a son and third parties. The son enters into a marriage-contract. In such contract there is always some settlement upon the heirs of the marriage. The son and father set forth that the estate was devised to heirs-male. What shall be the consequence if the son should afterwards say, I did not know but I might have quarrelled: he comes too late, the marriage having intervened. This would be clearly contra fidem tabularum nuptialium.

President. I do not touch upon the question of homologation. On the faith of an entail, a marriage was entered into. It is now too late to challenge it. Such references in general, to an entail, are not unusual in marriage-contracts. It was my own case. There is thereby a jus crediti to the children.

On the 4th December 1767, the Lords “found that the pursuer is barred, by his contract of marriage, from reducing the entail in question.”

On the 25th November 1768, they adhered.

Act. W. Mackenzie, R. M'Queen. Alt. J. Boswell. Rep. Hailes.

Diss. Strichen, Kaimes, Gardenston, Coalston; Elliock. At the second advising, Diss. Gardenston. (Coalston absent.)