Scottish Court of Session Decisions

In this action Harvey sought to reduce a disposition omnium bonorum, granted by him to the defender in 1851. The said deed conveyed, inter alia, the provisions due to him under his antenuptial marriage-contract, dated in 1842. By the said marriage-contract the pursuer bound himself to hand over a certain sum to trustees, the interest of which was to be paid to him during his life, and on his death to his widow. The pursuer was divorced from his wife, and by a decree of the Court, dated 16 July 1870, it was decided that the effect of said divorce was equivalent to natural death.

The grounds upon which he now sought to reduce the said deed appear sufficiently from the following interlocutor and note of the Lord Ordinary ( Ormidale):— “The Lord Ordinary having heard counsel for the parties, and considered the argument and proceedings, finds that no relevant or sufficient grounds of reduction are averred by the pursuer entitling him to insist in the present action; therefore repels the reasons of reduction, dismisses the action, and decerns; finds the defenders entitled to expenses, allows an account thereof to be lodged, and remits it when lodged to the auditor to tax and report.

Note—This action must be looked at in connection with the former one mentioned in the record, at the instance of the pursuer against his marriage-contract trustees, judgment in which was pronounced by the Court on 12th July 1870, and is reported in 8 Macph. 971. In that former action the pursuer referred to the present as being about to be brought by him in order to clear his title. But the Court, by the judgment referred to, found, independently altogether of the objection that the pursuer's title might be held as affected by the disposition omnium bonorum now sought to be reduced, that he had no right to insist in the claims made by him, in respect he had been divorced from his wife on the ground of adultery. This result was arrived at on the ground that the pursuer had forfeited, by the dissolution of the marriage by his adultery, all right to his marriage-contract provisions which might otherwise have been available to him, just as they would have been by his natural death. It was therefore in that action, where the pursuer restricted his claim to the interest or income of the funds held in trust under the marriage-contract between him and his wife, expressly held that, in respect of his divorce for adultery, there were no grounds on which he could maintain such a claim.

“What interest, therefore, the pursuer can have in now insisting in the present action is not apparent. And, at any rate, the Lord Ordinary cannot see that he has set forth any relevant or sufficient ground for insisting in the action: (1) He says it was ultra vires of him to have granted the disposition omnium bonorum, so far as it had reference to his rights and interests under his marriage-contract, as these rights and interests were declared to be beyond the diligence of his creditors. It is now, however, res judicata that in consequence of the dissolution of his marriage, in respect of his adultery, he had forfeited all claim to at least the interest or income of the marriage-contract funds. It was argued, however, that eventually, on the death of his wife, the pursuer's claim to the income or interest of the marriage-contract funds will revive, and the case of M'Alister, 18th July 1854, Scottish Jurist, was referred to in support of this view. But the Lord Ordinary cannot see how the pursuer's claim to the interest or income in question can again revive, and neither can he see the application of the case of M'Alister. There is only a very short report of that case, from which it appears that the only contested point was the right of the offending wife, not to any marriage-contract provisions in favour of herself, but to exercise a certain power of division of provisions constituted in favour of her children. The Lord Ordinary must therefore hold that no question as to the pursuer's rights under the marriage-contract can arise, except as regards his eventual claim under the fifth head of the marriage-contract, as referred to in article 3 of the pursuer's condescendence; but, in regard to such claim, it does not appear to the Lord Ordinary that the pursuer was under any disability to assign the same to his creditors by the disposition omnium bonorum now challenged. (2) As to what the pursuer called his second ground of reduction, viz., the contraint under which he says, in article 10 of the condescendence, he acted in granting the disposition omnium bonorum, the Lord Ordinary thinks it is obviously quite untenable, his allegations amount to nothing more than that he was obliged, before being liberated from prison, to do what every debtor similarly situated is legally bound to do. (3) The only thing else on which the pursuer founded in support of the reduction was his statement in article 11 of his condescendence; but clearly that statement does not entitle the pursuer to have the disposition omnium bonorum cut down and set aside. Possibly Mr Ligertwood may not have properly discharged his duty as trustee under that deed, and if so, the pursuer may have his remedy, but certainly not by reducing the deed itself.”

The pursuer appealed.

Balfour for him.

Hall in answer,

The Court unanimously adhered.