Scottish Court of Session Decisions

Subject_1Husband and Wife
Subject_2Marriage-Contract
Subject_3Entail
Subject_410 and 17 Vict. cap. 94, sec. 24 — Reduction of an Excambion on the ground of Fraud by a Succeeding Heir of Entail.

Husband and Wife — Fraud — Marriage-Contract — Liability of Singular Successors under a Marriage-Contract for the Fraud of their Author.
Facts:

An heir of entail in possession of an entailed estate obtained in 1865 a decree of the Court under the Acts 6 and 7 Will. IV. cap. 42, 11 and 12 Vict. cap. 36, and 16 and 17 Vict. cap. 94, authorising an excambion of certain parts of the entailed lands for certain other lands belonging to him in fee-simple. Having executed a contract of excambion in pursuance of that decree, he, some years afterwards, conveyed the lands so excambed to the trustees under a marriage-contract entered into between his daughter and her husband, for behoof of her and him in liferent and the children of the marriage in fee. In a reduction of the decree, brought eight years afterwards by a succeeding heir of entail against the marriage-contract trustees and the only child of the marriage, on the ground of irregularity in the proceedings, and of fraud on the part of the original petitioner for the excambion— held that the proceedings were, under the 24th section of the 16 and 17 Vict. cap. 94, final, the marriage-contract trustees and the child being “third parties acting bona fide on the faith” of the decree.

Held that the right of marriage-contract trustees and the heir of the marriage taking benefit by such a transaction as that narrated above is not liable to reduction by reason of the fraud of the party who conveyed to them in the marriage-contract.

Observed ( per Lord Shand) that “it is quite settled that a marriage-contract is an onerous transaction, as much as a purchase or a loan would be.”