Elizabeth Buchanan, and James Hamilton her Trustee, v. Archibald Speirs, and Peter Bogle
Date: 6 March 1787 Case No. No 53.
A husband having become bound in his marriage-contract to employ a certain eventual provision, assigned to him by his wife, in security of her jointure, she was found entitled, while the sums so assigned were yet in medio, and even in a question with his creditors, to insist that they should be preserved entire, so as to secure the provisions promised to her.
Click here to view a pdf copy of this documet : PDF Copy
By a settlement executed by the father of Elizabeth Buchanan, a considerable sum of money was conveyed to a trustee, to be liferented by his widow, and to be divided, at her death, among such of the children as were then alive.
Elizabeth Buchanan, in her marriage-articles, assigned to her husband, by way of tocher, ‘all her title and interest under her father's settlement;’ while he, on the other hand, became bound “to lay out the tocher, and so much more as would amount to L. 4000, in favour of the children of the marriage, and likewise for securing to Elizabeth Buchanan, in case of her surviving him, an annuity of L. 160.”
Afterwards a part of the liferented funds was lent out to the husband of Elizabeth Buchanan, Archibald Speirs, and Robert Bogle, on their granting a bond payable to the trustee. This money was wholly applied to the husband's use; and, after the death of the liferentrix, the sums due by the bond above mentioned having fallen to the share of Elizabeth Buchanan, and her husband having become insolvent, an action was instituted by her, and James Hamilton her trustee, against the co-obligants, who were at the same time creditors to the husband to a great amount.
Pleaded in defence; If the sums in question had continued in the possession of the trustee, or had been lent out by him to a stranger, it may be admitted, that neither the husband of Elizabeth Buchanan, nor his creditors, could have insisted for payment, while the obligations he had come under to her remained unfulfilled. But these sums have long ago been placed in the hands of the husband himself; and to authorise a wife, in a question especially with her husband's creditors, to recover money already intromitted with by him, would be to convert what is on her part merely a personal claim, into a real or hypothecary right. Nor can the circumstance of the bond granted by the husband and his cautioners have any influence on the right of the wife. This was at the time a proper measure; because, while the liferentrix survived, it was uncertain to whom the money might ultimately belong. But after her death, the right having been united with the possession, in the person of the husband, every such claim as the present must be excluded.
Answered; It is now a fixed point, that a wife, in security of the conditions stipulated in her marriage-contract, may not only retain such of the sums assigned in name of tocher as her husband has not uplifted, but that, when he has become insolvent, she may prevent his creditors from attaching them while in the hands of a third party; 20th January 1781, Partners of the Woolen Manufactory at Haddington contra Elizabeth Gray, No 12. p. 9144.
There is no solid ground of distinction between the present case and the one just now quoted. The husband having granted the bond, is truly in the same situation as any stranger to whom the money might have been lent. And although, if he had been in affluence, the trustee would not have been allowed to demand payment from him or his cautioners, for the purpose merely of being able again to surrender the money to him, it is evident, that, in the circumstances which exist, such a measure is not only justifiable, but absolutely necessary.
The Lords found the defenders liable in payment of the sums sued for.
And they adhered to this judgment, after advising a reclaiming petition and answers.
By a subsequent interlocutor, the principle of which did not differ from that of those formerly pronounced, the Lords found the defenders entitled to retain, on giving security to the extent of the sums sued for, for payment of Mrs Buchanan's annuity, when it should become due.
A petition was afterwards preferred by Elizabeth Buchanan and her trustee; in which it was urged, That the defenders should be obliged to give security in general for the sums which might become due to her in virtue of the marriage-contract. But the petition was refused.
Lord Ordinary, Braxfield.Act. Wight, C. Hay.Alt. Lord Advocate, Solicitor General.Clerk, Home.
Fol. Dic. v. 4. p. 18. Fac. Col. No 327. p. 501.
