Scottish Court of Session Decisions

The summons in this suit, at the instance of Alexander Watson, residing in Pittenweem, against the Trustees under the ante-nuptial contract between John Grant and Margaret Taylor, concluded for reduction of the contract. The pursuer stated that the defender, Mrs Grant, was his sister uterine, that he had advanced to her between 1853 and 1858, or thereby, various sums; that in 1866 she granted a personal bond for £468; that the marriage took place in 1871; that in 1873 the pursuer raised an adjudication and inhibition on the dependence against the defender; that the marriage contract trustees appeared as defenders and produced the contract, which was recorded on 4th July 1873, and pleaded that the property was vested in them for the purposes of the contract. These purposes were, inter alia, the providing an alimentary liferent to the spouses and the survivor of them, and at the death of the longest liver of them the division of the property among the lawful issue of the said John Grant by this or any other marriage, along with the lawful issue of the said Margaret Taylor by this or any subsequent marriage. At the date of the marriage Dr Grant was fifty years of age, and had three children, and Mrs Taylor or Grant was about forty-seven years old.

The pleas in law for pursuer were—“(1) The said conveyance and alienation of her whole heritable means and estate by the said Mrs Margaret Taylor or Grant to and in favour of the Trustees named in the said contract of marriage, for the uses and purposes therein specified, being to the hurt and prejudice of the pursuer, his just and lawful claims the pursuer is entitled to decree of reduction as concluded for. (2) The said conveyance and alienation being to conjunct and confident persons, without true, just, and necessary causes, and without a just price really paid, and granted after the contracting of lawful debts from true creditors (and in particular the pursuer), it is void and null under the Act 1621, cap. 18, and at common law, and should be reduced, in terms of the conclusions of the summons. (3) Separatim, the said conveyance and alienation falls to be reduced, in so far at least as the provisions therein conceived by the said Mrs Margaret Taylor or Grant to and for behoof of the said Dr Grant and children are excessive. (4) Generally, in the circumstances, the pursuer is entitled to decree of reduction as concluded for. (5) This action should be conjoined with the process of adjudication libelled.”

The pleas in law for the defenders, the Trustees,

Page: 511↓

were—“(1) The pursuer has not set forth, and does not possess, any title to sue or to insist in the present action. (2) The statements of the pursuer are not relevant or sufficient to support the conclusions of the action. (3) The statements of the pursuer being unfounded in fact, the defenders are entitled to absolvitor. (4) The said process of adjudication should be sisted until the present action is disposed of.”

The pleas in law for defenders Dr and Mrs Grant were—“(1) The pursuer has not set forth, and does not possess, any title to sue or to insist in the present action. (2) The statements of the pursuer are not relevant or sufficient to support the conclusions of the action. (3) The defenders, Mr and Mrs Grant, being neither jointly nor severally indebted or resting owing any sum to the pursuer, and the said conveyance by Mrs Grant to her marriage-contract trustees not being to his hurt and prejudice, the defenders ought to be assoilzied. (4) The said conveyance by Mrs Grant to her marriage-contract trustees having been made for true, just, and necessary causes, it is not liable to reduction under the Act 1621, cap. 18, or at common law. (5) The said conveyance not being excessive or exorbitant, it is not challengeable to any extent. (6) The statements of the pursuer being unfounded in fact, the defenders are entitled to absolvitor. (7) The said process of adjudication should be sisted until the present action is disposed of.”

The Lord Ordinary pronounced the following interlocutor:—

“27 th January 1874.—The Lord Ordinary having heard parties' procurators and considered the closed record and productions, sustains the second plea in law for the defenders, dismisses the action, and decerns, reserving to the pursuer any legal claims which he, as a creditor of the defender Mrs Grant, may have to the income of the trust property in question: Finds the pursuer liable in expenses, of which appoints an account to be given in, and remits the same when lodged to the Auditor to tax and report.

Note—The Lord Ordinary has not been able to see anything in the circumstances of the case to warrant him in coming to a different conclusion from that arrived at in the case of Carphin, 24th May 1867, 5 Macph. p. 797, relied on by the defenders, in which it was held that the pursuers had not set forth any grounds relevant and sufficient in law to render the contract of marriage null or reducible, either at common law or under the Act 1621, c. 18. He has, since the debate, examined the Session Papers in that case, and he finds that the summons of reduction is there laid both at common law and under the statute in substantially the same terms as those of the present summons. And although the obligations undertaken by the husband in the marriage contract here in question, as the counterpart of the conveyance of the property belonging to his wife, to the marriage-contract Trustees, may not be so large in amount as those undertaken by the husband in the case of Carphin, they appear to be in other respects of as onerous a description; so that the conveyance of the wife's property in contemplation of the marriage must, it is thought, be held to have been granted for ‘true and just cause’ in the sense of the statute. The provisions made in favour of Dr Grant are, in one view, no doubt in excess, as alleged by the pursuer, of those undertaken by him in favour of his wife; but that is not, in the opinion of the Lord Ordinary, in itself enough to do away with the onerous nature of the contract. For the same observation applies to the case of Carphin, where the husband appears to have been insolvent at the date of the marriage, and not even to have had means sufficient to enable him to enter a profession.

It is further alleged in this case that the property placed in trust in contemplation of the marriage was ‘greatly in excess of what in the circumstances was fair, just, and reasonable.’ In this respect, therefore, the pursuer's averments appear to be more distinct than those made in the case of Carphin; and the Lord Ordinary had at first some doubt whether, having regard to the case of Duncan, 7th February 1785, Diet. 987, he ought to dismiss the action as irrelevant, without giving the pursuer an opportunity of proving this allegation. On further consideration, however, he is satisfied that this averment, as contended for by the defenders, ought to be read with reference to what is stated in the 5th article of the condescendence as to the annual value of the property. And looking to the position of the parties, the Lord Ordinary has been unable to come to the conclusion that a property valued at from £50 to £60 a year was in excess of what was in the circumstances a fair and reasonable marriage—contract provision. He has therefore sustained the second plea in law for the defenders, reserving to the pursuer, as in the case of Carphin, any legal claim which he may be able to instruct as a creditor, to recover payment of his debt out of the income of the property.”

The pursuer reclaimed.

Authorities quoted— Duncan, M. voce, Bankrupt, 987; Carphin, 5 Macph., 24th May 1867.

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