Scottish Court of Session Decisions

On October 27, 1909, Mrs May or Mary Hargrieve or Dunnachie, Milngavie, near Glasgow, wife of John Dunnachie, then an inmate of the Stirling District Asylum, Larbert, presented a petition under the Married Women's Property (Scotland) Act 1881 (44 and 45 Vict. cap. 21), sec. 5, in which she craved the Court to dispense with her husband's consent to any bond and disposition in security for a loan to her on the security of Grasmere Cottage, Loanhead, or to any disposition or other deed of transfer of the said property by her in favour of a lender or purchaser.

The petitioner averred—“(2) On or about 23rd July 1909, in consequence of the deranged state of mind of the said John Dunnachie, it was found necessary to remove him to Stirling District Asylum at Larbert. He was discharged on 17th September 1909, but in consequence of a relapse he was again committed to the said Asylum on 29th September 1909, and is now an inmate there. Owing to his suspicious and delusional condition of mind he is incapable of giving consent to any deed by the petitioner.

(3) The late David Hargrieve, sometime merchant, Loanhead, thereafter residing there, by his trust-disposition and settlement, dated 12th January 1891, and recorded in the Books of Council and Session, 31st July 1894, inter alia, directed his trustees to convey to his niece Margaret M'Allister, in liferent for her liferent use allenarly, and to the petitioner, then unmarried, and her heirs and assignees in fee, his heritable property in Loanhead, called Grasmere Cottage, according as the same is described in the title-deeds, and the said David Hargrieve declared, by his said trust-disposition and settlement, that the legacies or provisions therein mentioned, so far as payable

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to females, should be for their own separate use and benefit, and exclusive of the jus mariti and right of administration of any husband they had married or might respectively marry, and that the same should not be subject to the debts or deeds of such husbands, or liable to the legal diligence of their creditors, but that it should be competent for such female legatees or beneficiaries by themselves alone, and without the consent of their husbands, to discharge these said legacies or provisions. The trustees of the said David Hargrieve accordingly, by disposition dated 23rd March, and recorded in the Division of the General Register of Sasines applicable to the County of Edinburgh, 3rd May, both in the year 1895, conveyed to the said Margaret M'Allister in liferent, and to the petitioner and her heirs and assignees in fee, the said heritable property in Loanhead called Grasmere Cottage. The said Margaret M'Allister died on 26th April 1895. The disposition contained no declaration that the conveyance to the petitioner is exclusive of the rights of any husband she might marry.

4. The petitioner has one child, a boy of fourteen years of age, and she is thrown upon her own resources to earn a livelihood for herself and her boy. She proposes in the meantime to borrow a sum of £200 upon the security of her said property of Grasmere Cottage, and to sell the same, if a purchaser at a suitable price can be found. Being a married woman, she is unable to grant a bond and disposition in security in the ordinary way, or to sell and convey her heritable property without the consent of her husband, unless she is authorised by the Court to do so, and the present petition is therefore rendered necessary.”

The petitioner in Single Bills moved the Court to grant the prayer of the petition and cited the case of M'Lennan v. M'Lennan, 1908 S.C. 164, 45 S.L.R. 167.

The Court granted the prayer of the petition.