Scottish Court of Session Decisions

This was an action raised by the Standard Property Investment Company against Henry Cowe, fishcurer in Edinburgh, Mrs Patricia Chalmers Hunter or Cowe, his wife, and others. The following narrative is taken from the Lord Ordinary's note:—“The defenders, Henry Cowe and his wife Patricia Chalmers Hunter, on the occasion of their marriage in 1869 entered into an antenuptial marriage-contract, by which Henry Cowe, on the one hand, disponed certain subjects belonging to him at Bonnington, near Edinburgh, to his wife in the event of her survivance, and so long as she should remain his widow, in liferent, for her liferent use allenarly, declaring that in the event of her entering into a second marriage a liferent annuity of £25 should be substituted for the foregoing liferent. These provisions were accepted by her as in full satisfaction of her claims for terce and jus relictœ. On the other hand, Mrs Cowe conveyed the whole estate, heritable and moveable, then belonging to her or which she might acquire or succeed to during the marriage, to trustees, for the purposes specified in the contract. Her own estate was thus protected against her husband and his creditors, and against her own acts, during the subsistence of the marriage, by the interposition of trustees for her behoof; but the liferent right provided to her by her husband was not so protected. She was, however,

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infeft in her liferent of the subjects, conform to notarial instrument recorded in the Register of Sasines on 9th May 1872.

In 1872 Henry Cowe, the husband, in order to pay off a debt of £1025 due by him to the Commercial Bank, borrowed that sum from William Hunter, and in security thereof he, with consent and concurrence of his wife for all right and interest competent to her in the premises under and in virtue of the said marriage-contract, conveyed to Hunter the subjects in question, and assigned a policy of assurance on his life, conform to bond and disposition and assignation in security, which, with a judicial ratification thereof by his wife, was recorded in the Register of Sasines on 1st July 1872.

In 1874, in order to pay off the debt to Hunter, Henry Cowe borrowed the sum of £1025 from the pursuers, the Standard Property Investment Company, in consideration of which Hunter assigned to the pursuers the said bond and disposition and assignation in security, conform to assignation by him, with consent and concurrence of the defenders, Mr and Mrs Cowe, for all right and interest competent to them in the premises, dated 13th and recorded in the Register of Sasines the 15th August 1874. This assignation was not judicially ratified by Mrs Cowe, but it is not alleged that it was extorted from her by her husband vi aut metu. It is however alleged, and it is not disputed, that the loan of £1025, in security of which these deeds were granted, was wholly applied in payment of the husband's debts, and was not to any extent paid to or applied for behoof of Mrs Cowe.

In the beginning of 1875 the estate of Henry Cowe was sequestrated, and the defender David Kinnear was appointed trustee in the sequestration. The interest and instalments of the debt fell into arrears, and the pursuers called up the loan in October 1875; and on the expiry of the notices in February 1876 they brought the subjects to sale by public roup under the power of sale contained in the bond and disposition and assignation in security; and on 23d March 1876 they were purchased at the roup by the defender, John Alexander Brodie, at the upset price of £1150. Brodie is willing to implement the sale, but he has been interpelled by the defender Mrs Cowe, who maintains that her consent to the security was a gratuitous donation to her husband inter virum et uxorem which she is entitled to revoke, and that the sale cannot be allowed to be completed except under reservation of her liferent rights; and in order to have that question settled the pursuers have raised this action, in which they ask for declarator (1) that under and by virtue of their said securities they have full power to sell and dispose of the said subjects over which their said securities extend, and that free and disencumbered of all right which might be pretended by the defender Mrs Cowe under her antenuptial contract of marriage to the liferent of the said subjects in the event of her surviving her husband; (2) that the defender Mrs Cowe has no right or title, by virtue of the said antenuptial contract, or her infeftment therein, or on any other ground, to interfere with or object to the sale of the said subjects, which has been arranged between the pursuers and the other defender John Alexander Brodie; (3) that the said subjects so sold will henceforth stand free and disencumbered of the right of liferent of the said Mrs Cowe, contained in the said antenuptial contract of marriage, and of the said contract itself; and (4) that the sale of these subjects to Brodie, under the powers contained in the said bond and disposition and assignation in security was a valid and effectual sale, and that the defender Brodie is bound to implement the same; and there is a petitory conclusion against him for payment of the price of £1150, with interest, which is by minute restricted to the interest allowed by the bank on the said price, which he has consigned.

Defences have been lodged only for Mrs Cowe, to whom, as her husband and his creditors have an adverse interest, Mr C. B. Logan, W.S., has been appointed curator ad litem. In her defences she maintains that the sale, if carried out, must be made always under the burden of the liferent provided to her by the marriage-contract with her husband should she be the surviving spouse, and that the deeds founded on by the pursuers, viz., the bond and disposition and assignation in security, and the assignation thereof, both bearing to be executed with her consent, were, in so far as they import a discharge of her liferent right, granted by her without consideration, and for her husband's behoof, and are therefore revocable by her as a donation inter virum et uxorem,”

The pursurs pleaded—“(1) Under and by virtue of the bond and disposition in security and assignation thereof above mentioned, the pursuers have full power to sell and dispose of the subjects libelled, and to apply the price, so far as necessary, in payment of the sums secured over the same. (2) The defender Mrs Cowe, not being barred by the said antenuptial contract, or otherwise, from disposing of the contingent right of liferent provided to her, was entitled to give her consent to the said bond and disposition in security and the assignation thereof, and the said right of liferent was thereby effectually renounced and discharged. (3) The said defender is barred by the judicial ratification condescended on from challenging the bond and disposition in security. (4) A valid and effectual contract of purchase and sale of the subjects libelled having been concluded between the pursuers and the defender Mr Brodie, the pursuers are entitled to have decree of declarator to that effect, and they are also entitled to have decree of implement. (5) The pursuers being, under and in virtue of the said bond and disposition and assignation thereof, in titulo to sell the said subjects, and to grant a valid disposition thereof, they ought to have decree in terms of the conclusions.”

The defender Mrs Cowe pleaded—“(1) The liferent right in favour of the present defender contained in the said ante-nuptial contract of marriage being an onerous and reasonable provision created for her behoof after her husband's death, could not be discharged by her during his life, and the pursuers are only entitled to sell the said subjects under burden of the said liferent. (2) The deeds founded on by the pursuers, in so far as they import a discharge of the defender's liferent right in the said subjects, having been granted by her without consideration, and for her

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husband's behoof, are revocable by her as donations inter virum et uxorem. (3) The pursuers being only entitled to convey the subjects in question subject to the present defender's liferent right, the conclusions of the summons, so far as directed against her, are incompetent, and she should be assoilzied, with expenses.”

On 5th December the Lord Ordinary pronounced the following Interlocutor:—“Finds, decerns, and declares against the defender Patricia Chalmers Hunter or Cowe, and, in absence, against the other defenders, in terms of the whole conclusions of the summons, as restricted by the minute appended to the summons, and decerns, reserving to the defender Mrs Cowe all claims competent to her under and in virtue of her marriage-contract mentioned in summons against her husband Henry Cowe, and the trustee on his sequestrated estate, and against the price of the subjects mentioned in the summons, in so far as any free balance thereof may remain after satisfying the debt due to the pursuers, and arrears of interest and instalments thereof, and the expenses of the sale of said subjects, and the answers of all concerned as accords of law,” etc.

“ Note.—The question raised in the present action is, whether it is competent for a married woman, who has been infeft in a liferent or other provision out of her husband's estate, in virtue of her antenuptial marriage-contract, to renounce or discharge such provision stante matrimonio, by consenting for her interest to the alienation of the estate by her husband to a third party for onerous considerations. I had occasion to consider this question, and I decided it in the affirmative, in March last, in an action between the widow of the late Mr Falconer of Carlowrie and the trustees of Mr Hutcheson, who had purchased from her husband, with her consent, the estate of Carlowrie, in which she had been infeft in security of an annuity provided to her by her antenuptial marriage-contract. And as the question was then discussed as being one of general interest and importance, I thought it right, in the note appended to my judgment, to trace the history of this law, and exhibit the leading authorities applicable to the question. The parties having acquiesced in that judgment the case has not been reported, and I regret that I am thus unable to refer to it (as I should have wished to do) for the grounds upon which I have pronounced the foregoing judgment in the present case. I must, therefore, once more express my reasons for the judgment in detail.—[ Here follows the narrative given above.]

“The defender does not allege that the price of £1150 to be paid by the defender Mr Brodie for the property is not a full and fair price, nor does she say that the sum of £1025, in consideration of which the bond and disposition in security was originally granted, was not paid by Mr Hunter to her husband, or that the like sum was not truly advanced by the pursuers to her husband as the consideration for their obtaining the assignation to the said bond and disposition in security. Nor does she say that her consent to the deeds, by which she virtually renounced her liferent over the subjects, was extorted from her vi aut metu; by the force or fear of her husband. Indeed her judicial ratification of the bond and disposition in security would exclude any such ground of challenge. Her main ground of defence is that her consent to the sale of the property and her renunciation of her liferent are not now binding upon her, in respect that she could not stante matrimonio lawfully renounce the provision made for her in the antenuptial contract of marriage. The question is a material one for both the pursuers and the defender, and it is also of much importance in its general legal aspect. The authorities upon which the defender mainly relies are the judgments in a series of well-known cases, beginning with the case of Anderson v. Buchanan, and ending with the recent case of Fletcher Menzies v. Murray, in all of which it was held that a married woman could not during the life of her husband effectually revoke a trust constituted in her antenuptial contract of marriage for the purpose of securing the provision thereby made in her favour, or rather protecting her own separate estate; and if the present defender had been in the position which the married woman occupied in each of these cases, judgment must have been pronounced in her favour. But it appears to me, after careful consideration of the whole case, that the circumstances are essentially different from those which existed in the cases referred to, and that the principle which guided the Court in all these cases is not applicable to the present case. The principle I understand to be, that where in a antenuptial contract of marriage the provisions in favour of the wife for her own separate estate are vested in the trustees for her behoof, the law holds that this is done for the express purpose, not only of securing the wife against the risk of loss from the acts and deeds of her husband, or from his subsequent insolvency, but of protecting her against all influence and interference on his part, and against her being induced by her desire unto her husband to renounce or alienate her provisions or estate. In short, the trust is regarded as a means, if not the only effectual means, of protecting the wife's marriage-contract provisions and her separate estate, not merely against her husband, but quite as much against herself and her own acts, and it is now settled that such a trust is irrecoverable stante matrimonio, whether it is declared in the marriage-contract to be so or not. But I am not aware of any case in which it has been held that a married woman has not power effectually to renounce, alienate, or discharge during the marriage a provision in her favour contained in her marriage-contract not secured by a trust but merely constituted by an infeftment in her own name, without any restriction against alienation or renunciation, or without any declaration that it shall be irrevocable. There are, on the other hand, many cases in the books in which such renunciation and alienation have been expressly sustained as competent and lawful, and as binding upon her if judicially ratified and in some instances even where not ratified such deeds are regarded in the same light as alienations of the wife's heritable separate estate, where that has not been vested in trustees by the antenuptial contract, which are undoubtedly lawful if consented to by her husband and ratified by her coram judice, and outwith the presence of her husband.

And here it may be observed, that so far

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from the alienation or discharge by a wife of her marriage-contract annuity or jointure being regarded by the law as ultra vires of her, and inept, if granted by her own voluntary act, the system of judicial ratification which has now prevailed for nearly four centuries proves very clearly that the fact of coverture will not entitle a married woman to challenge such a deed where there has been no such ratification, unless she can establish that it has been extorted by her husband vi aut metu. As the defender contends, the fact of the discharge of her jointure having been granted by her, a married woman, stante matrimonio, is sufficient to entitle her to revoke the deed,—a judicial ratification, which merely bars her from challenging it on the ground of force and fear could afford no security to parties onerously accepting such a deed. Now, it is worthy of notice that the first case in which such ratification was held sufficient to bar a married woman from revoking a deed granted by her during marriage had reference to an alienation of jointure lands. ‘This doctrine,’ Erskine says (i. vi. sec. 34), ‘was established by a judgment in a private cause pronounced by the Lords of Council 6th March 1481, which, because it is engrossed in the body of our statute 1481, c. 83, became part of our written law,’ The title of the Act, as printed in the duodecimo edition of 1682, is—‘Ane woman, conjunct fear, makand faith that scho sall never cum against the alienation thereof sail nocht be hearde af terwardes to impugne the said alienation;’ and the words of the judgment are as follows:—‘Memorandum.—The sext day of March, the yeir of God 1481 years. Robert Danielstown was persewed be a woman called Glen before the Lordes of Councel, and scho wald have cummin against her aith that scho maid in judgment before the official of Glasgow, and there was schawin ane instrument under the seale of the said official that scho consented to the alienation of sik lands, and swore that scho suld never come in the contrair hereof, and would have the saidis lands, allegeand that it was her conjunct feftment, and maid revocation after her husband's decease, sayand that he compelled her thereto. The action was delivered against this woman.’

The following reference to some of the institutional writers and decided cases suffice in my opinion to shew that coverture, apart from force and fear of the husband, does not disable a married woman from discharging or renouncing a liferent of lands or jointure, even when constituted by antenuptial contract, in cases in which third parties have onerously contracted with her husband on the faith of her consent. Thus Erskine, in further treating of the subject, says (i. vi. sec. 33)—‘In like manner, if the husband had, with the wife's consent, made over to a stranger any part of the lands settled on her in liferent, action was competent to her for setting aside the alienation, upon the ground that the consent given by her to the deed had been extorted from her by her husband. To secure the grantees against the consequences of such actions, when they were pursued vexatiously, ratifications have been introduced into our practice, by which the wife, appearing before a judge, declares upon oath that her husband neither induced her by force nor fear to grant the deed or give her consent, but that she did it freely and for her own utility, and that she shall never afterwards call it in question.’ And again ( ib. sec. 35)—‘Every deed by which any right accrues to a third party may be thus secured by the wife's ratification, though a consequential benefit should arise to the husband; for the aforesaid Act 1481, which establishes the law of ratifications and fixes their extent, applies them expressly to the case of a wife whose husband was pressed by debt to sell his estate, and to have renounced her interest in her jointure lands that the purchase might be disencumbered, and had judicially ratified her renunciation.’

So also Craig, writing long before the time of Erskine, says,—‘Quomodo autem in alienatione per maritum facta, illius prcedii, cujus usufructum mulier habet, uxoris consensus interponi debeat, multi quæstionem movent. Antiquitus coram judice tantum et extra præsentiam mariti interponebatur; hodie si subscripserit instrumento alienationis coram testibus sufficit, nisi post, si ad subscribendum coactum vi et metu probare poterit; tutius tamen fecerit, qui in judico ejus consensum extra mariti præsesentiam obtinuerit.’

The cases now to be noticed shew that, where force and fear are not alleged, such deeds are, as Craig indicated, sustained even without ratification. Thus, in the case of Hepburn v. Naismith, 16th June 1613, a woman having consented to an alienation made by her husband of lands wherein she was infeft by him before her marriage in liferent or conjunct fee intuitu matrimonii, or for an annual rent of 400 merks yearly during her lifetime, the alienation was held to be effectual and without her judicial ratification, ‘unless she had libelled virum et expressum metum by relevant circumstances and deeds, and proved the same by lawful and ordinary means.’ In the case of Grant, 8th July 1642, a married woman having consented to and judicially ratified a disposition made by her husband of a tenement in Perth provided to her in conjunct fee by her contract of marriage, she was held not entitled to set it aside. And a similar decision was pronounced in the case of Ray v. Cumming, 28th June 1706, in which the question was distinctly raised and decided that a married woman, if not coacted vi aut metu, might effectually discharge her jointure stante matrimonio by consenting to the alienation of the subjects over which it is secured to a third party for a fair price. The case of Lockhart, 4th November 1762, is another decision to the like effect. The only, other case of the kind to which I will refer is the case of Arnold v. Scott, 28th June 1673, where the widow of William Baxter having raised an action for maills and duties of her liferent lands, wherein she was infeft on a contract of marriage, the defence was that she was denuded by her consent to a wadset of the lands granted by her husband to the defender and judicially ratified—‘Wherein, albeit there be a back tack, yet it is set to the husband, his heirs and assignees, and was apprised from him, to which apprising the defender hath right.’ The Court, drawing the distinction between the wadset to the onerous creditors and the back-tack to the husband, held that the judicial ratification of the wife could only be extended to the interest of the wadsetter, and found the back-tack, being only in favour of the husband, a donation revocable, and found the wife to have the right

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to the maills and duties more than the wadsetter's annual rent.

In contrast to these cases, reference may be made to the cases of Cassie, 27th June 1632, Mor. p. 10,279, and Woodhead, 24th June 1662, M. p. 10,281, in both of which a married woman's consent to a wadset granted by her husband of her jointure lands was held to be revocable, and was set aside even against an onerous wadsetter, because she alleged and proved that it had been extorted from her by her husband by violence, and she had not ratified the deed.

An authority which at first sight appears to be counter to these is the case of Scott v. Cranstoun, M. 6,108, reversed by the House of Lords, 2 Paton's App. p. 425. The rubric of the case is, as reported by Mr Paton,—‘A husband procured a renunciation from his wife of her provision secured preferably over his estates, in order to allow them to be sold and the price paid to his creditors. Held the wife not bound by the renunciation, although the parties were interested and had agreed to abate claims on her granting it.’ This rubric does not correctly state the import of the decision of the House of Lords, which, it is evident from the report, proceeded upon the grounds (1) that the renunciation had been granted by Lady Cranstoun under essential error on her part; (2) that although the creditors had agreed to make certain abatements in respect of that renunciation, nothing was done by them to implement the agreement, and nothing followed upon it; (3) that there was a final judgment of the Court of Session pronounced years before the ultimate judgment appealed against, to the effect that there was no evidence that the transaction between the creditors and Lady Cranstoun was ever concluded, and that the creditors were therefore not bound to give an abatement from their debts. It also appeared from documents produced in the House of Lords that negotiations had been renewed, although never completed, for a new deed of renunciation being granted by Lady Cranstoun. This case, therefore, is no authority for holding that a married woman cannot effectually renounce during her marriage an antenuptial marriage-contract provision made directly in her favour.

These cases, which, as I think, must be taken as establishing the law that a married woman may effectually alienate or renounce a security held by herself directly over her husband's estate for her marriage-contract provisions, and that she cannot competently challenge her renunciation as being a donation inter virum et uxorem in a question with a third party, who, on the faith of it, has erroneously contracted with her husband, do not appear to me to be in any way affected, or to have their authority lessened, by the judgments in the recent cases already referred to, viz., Anderson v. Buchanan, 15 Sh. 1073; Pringle v. Anderson, 9 Macph. 982; Hope v. Hope's Trustees, 8 Macph. 699; Ramsay v. Ramsay's Trustees, 10 Macph. 120; and Fletcher Menzies v. Murray, 2 Rettie, 507. In all of these cases a trust was interposed for the express purpose of protecting the wife's interest. Such trusts are of comparatively recent introduction, and it is obvious that they enable parties to secure the provisions in favour of a married woman, and to protect her own separate estate in a much more effectual manner than by taking infeftment on the contract in her own name, or by allowing her separate estate to remain under the original infeftments in her own favour. Now, if I have not entirely misinterpreted the judgments in these recent cases, the existence of the trust was in each case the ground on which the Court held the wife's estate and the provisions in her favour to be effectually protected against the acts of the spouses stante matrimonio, and a provision not so protected must, in my opinion, be dealt with as the provisions were dealt with in the earlier decisions to which I have adverted. In the present case it was not intended to give the defender the security of a trust with reference to her liferent. This is shewn by the circumstance that the funds coming from herself were all carefully vested in trustees for her behoof, but no such precaution was taken with reference to her liferent. I am therefore of opinion that the defender is not entitled to be reinstated in the full right of her liferent as against the parties who lent money onerously and in bona fide over the property, and who have now brought the property to sale under the powers which she, and her husband with her consent, conferred upon them.

The case of Rae v. Neilson, 2 Rettie 676, was referred to by the defender as virtually superseding the earlier decisions I have noticed, and as establishing the broad general proposition that a married woman cannot stante matrimonio renounce any provision made in her favour by her marriage-contract, whether secured by the interposition of a trust or not. But that case does not in the slightest degree support such a contention, for the deed which the widow was there found entitled to revoke after her husband's death was a mutual settlement executed by her and her husband, by which her marriage-contract provisions were materially reduced, and the estates of herself and her husband were settled gratuitously upon relatives of the husband and wife, who had given no onerous consideration for the deed, and the judgment of the Court proceeded on the ground that none of these beneficiaries could plead jus quœsitum lertii.

On the whole matter I have come to be of opinion that the pursuers are entitled to decree in terms of the conclusions of the summons, with expenses.”

The defender Mrs Cowe reclaimed.

At advising—