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United Kingdom House of Lords Decisions
You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> John Campbell, of Calder, Esq; v. Ruth Pollock, alias Campbell [1720] UKHL Robertson_324 (7 June 1720)
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Cite as: [1720] UKHL Robertson_324
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SCOTTISH_HoL_JURY_COURT
Page: 324↓
(1720) Robertson 324
REPORTS OF CASES ON APPEAL FROM SCOTLAND.
Case 70.
v.
Subject_Personal and transmissible. —
A sum appointed by a father to be paid to a son, his heirs, executors, or assignees, at a day certain, was transmissible by the son, though he died before that day.
Subject_Pactum Illicitum. —
An estate is fetded by a father upon his son and his heirs, reserving a life-rent to a certain amount, and by the son's marriage contract the estate is declared to be of a certain annual value: two years after the marriage the son by a deed declares that the estate was not worth so much per annum, but that this was done to please the wife's friends, and he grants bond to pay or allow the father to charge a sum upon the estate for provisions to his younger brothers and fitters, which should be in full of legitim: this was not contra fidem tabularum nuptialium.
Subject_Implied Discharge. —
After granting this bond, the fiar made a new disposition of the estate to the son, in same terms with the marriage-contract; but this was not a discharge of the bond, allowing the father to charge the estate with childrens' provision.
Subject_Fiar absolute limited. —
In a son's marriage-contract it is covenanted, on the part of his father that lanas and hereditaments of a certain annual value were to be fettled and assured so as that the same should come to and be vested in the eldest son of the marriage, and other lands and hereditaments to remain to the son's use, reserving the father's life-rent of part: the son was fiar, and by his bond bound the heirs of the marriage.
By articles of marriage in the English form, executed at London, in September 1688, between Sir Hugh Campbell of Calder and Alexander his eldest son (the appellant's grandfather and father) of the one part; and Lady Susanna Lort of Turnham Green, widow, and Elisabeth Lort her daughter, of the other part; in consideration of an intended marriage between the said Alexander and Elizabeth, and of a considerable marriage-portion, it was inter alia agreed as follows:
That the said Sir Hugh should within three months after the said marriage well and sufficiently fettle and assure manors, lands, and hereditaments of a good, sure, and indefeasible estate of inheritance in fee simple, in possession, of the yearly value of 1000 l. sterling, over and above all charges and reprises, to the use of Alexander the son for life, without impeachment of waste; remainder, as to part, to the intended wife for life for her jointure; remainder to the first and every other son of that marriage in tail male, with several other remainders over: and that the said Sir Hugh should in the same three months well and sufficiently fettle and assure other manors, lands, and hereditaments, within Scotland, of the yearly value of 1500 l. (over and above the first mentioned lands of 1000 l.) to the use of the said Sir Hugh for life, and after his decease to the use of the said Alexander Campbell for life, without impeachment of waste, remainder to the use of the first and every other son of the said marriage in tail male, with several remainders over; and that in the deeds of settlement to be made of such estate there should be contained such
Page: 325↓
The marriage accordingly took effect, and in November, 1688, Sir Hugh executed a disposition, conveying and granting to the said Alexander Campbell, and Elizabeth Lort his spouse, and longest liver of them two in conjunct fee and life-rent, and to their heirs male and of tailzie, heritably and irredeemably, certain lands in Argylstire therein mentioned: and Sir Hugh, by the same deed, conveyed and granted to his said son Alexander, and his heirs male and of tailzie, certain other lands therein mentioned. And he declared and obliged himself that all the said lands were worth 2500 l. per annum; and Sir Hugh reserved his own liferent in lands of 1500 l. per annum.
The whole of the lands, so settled, were not worth the 2500 l. which they were stated to amount to in their annual value, nor were they free from incumbrances. The appellant states, that they were only worth about 1700 l. per annum, and charged with debts to the amount of 10,000 l.
In June 1690, the said Alexander the son executed a deed, in which, after reciting the said marriage-articles and conveyances, it is mentioned, “That the same were only entered into to please the friends and lawyers of the said Lady Susanna Lort, that there might be no stop to the said marriage, and upon full assurance given by the said Alexander to his father Sir Hugh, of discharging him of that covenant, that the estate should be clear of all incumbrances, and likewise to give him a power to charge the said estate with provisions for younger children.” In performance of this promise, the said Alexander, the son, releases Sir Hugh from the covenant or obligation to make the lands settled 2500 l. per annum free of all debts, and accepts of the estate as it was, subject to and charged with all the debts of the said Sir Hugh both real and personal; and likewise gave his bond with a power or faculty to Sir Hugh to charge the estate settled with 2000 l., to be paid to such of his younger children as he should by any deed under his hand appoint and direct; and the said Alexander obliges himself to pay all the debts then owing by Sir Hugh, and all such debts as Sir Hugh should contract with his consent, and likewise the said younger children's provisions; upon condition nevertheless that this provision should be in full satisfaction of such part and share as they might claim of their father's personal estate after his decease. This deed was a private transaction between the father and son, of which Lady Susanna Lort had no notice.
In October 1691, Sir Hugh executed another settlement of his estate, in the same terms with that in November 1688, particularly engaging that the same was of the yearly value of 2500 l., free from all incumbrances; and upon this last deed infeftment was taken. The respondent mentions, that the occasion of executing this second deed was, that certain lands had by mistake been omitted in the first. Neither this nor the former settlement were in the nature of a strict entail by the law of Scotland.
Page: 326↓
Alexander the son died before his father Sir Hugh in 1696, leaving two sons, Gilbert (since deceased) and the appellant. In November 1705, Sir Hugh by a deed executed by him, appointed 1000 l. sterling, with interest for the same from the date thereof, to be paid to Capt. George Campbell his younger son, (then wholly unprovided for) his heirs, executors, or assignees, at Martinmas 1710, by the heirs, executors, and representatives of the said Alexander: and he gave another provision of 10,000 merks Scots to his daughter Anne.
This Capt. George Campbell, having married the respondent, with whom he had a portion of 1700 l. which was laid out in the purchase of a commission and military equipage, on the 16th of July 1706 made his last will and testament in writing, whereby he gave and assigned to the respondent the said sum of 1000 l., with the interest thereof; and made her sole executrix of his will. He soon after went to Spain, on military service, and was killed at the battle of Almanza; and the respondent confirmed his testament in due form.
Payment of the said bond being refused to the respondent, she brought an action before the Court of Session thereon, and in February 1712 obtained a decree of constitution against Gilbert Campbell, the appellant's elder brother, and afterwards in January 1713, a decree of adjudication for the same. Having thereupon brought an action of mails and duties, she was now opposed by the appellant who had succeeded to the estate upon his brother's death, and who brought an action for reduction of the said bond. Before commencing this latter action the appellant served himself heir of provision and heir male in special to his father, in the barony of Calder, &c.; and at same time protested that such service should not be construed as a pasting from the marriage-articles, or subjecting himself to the payment of his father's or grandfather's debts; and the grounds upon which he insisted for reduction of the respondent's claims, were, that the obligee dying before the term of payment of the bond, the same thereby became void; and that it was also void as being granted contra fidem tabularum nuptialium.
Upon report of the Lord Ordinary, the Court on the 7th of December 1717 “Found that the bond granted to Captain George Campbell, his heirs and assignees, in anno 1705, payable at Martinmas 1710, is binding, and was assignable by him notwithstanding he died before the said term of payment; and found, that the bond granted by Alexander to his father in anno 1690 is not reducible as being contra fidem pactorum nuptialium, albeit it narrates a promise given by him to his father before the marriage in respect the same was granted long posterior to the marriage; and that the grantor thereof by the marriage-articles was provided to the free and full administration of the estate; and that the granting of a bond for suitable provisions to unprovided children was a rational deed; and found, that Sir Hugh Campbell's disponing the estate posterior to the bond, did not import a discharge thereof in regard the
Page: 327↓
The appellant reclaimed, and the Court, upon the 8th of February 1718, “found, that the fee of the lands and hereditaments mentioned in the marriage-articles was thereby provided to Alexander, notwithstanding of the clause, that lands and hereditaments of 1000 l. sterling were to be settled and assured, so as that the same should come and be vested in the eldest son of the marriage, and other lands to the yearly value of 1500 l. after the decease of Sir Hugh and Alexander were to be settled and assured so, that the same should effectually remain to the use of the said eldest son of the marriage: but found, that the private communing betwixt Sir Hugh and Alexander before the marriage, whereby Sir Hugh was enabled to grant bonds of provision to his younger children, and Alexander to become obliged to the payment of these provisions, and to undertake other burdens not mentioned in the said marriage-articles, was in fraudem pactorum nuptialium; and with regard to the bond granted by Alexander (though long posterior to the marriage) on the narrative of the said prior communing, and in implement thereof, bearing that the said Sir Hugh's engagements and obligements in the said articles, in so far as they were by the bond libelled, receded from, were only made and granted by him in compliance with the said Lady Susanna Lort and her lawyers and friends, that there might be no stop of the marriage, found that the said bond is not binding on the heir male of the marriage.”
Against this interlocutor the respondent reclaimed, and the Court, on the 17th of July 1718, “found that the condition in the bond, that the provisions to be granted to the children should be in satisfaction of their legitim and executry that might have fallen to them, is a sufficient onerous cause to support the bond, albeit eventually there were no free moveables, the father having reserved a fund of 1500 l. sterling, yearly, which might have afforded a fund for provisions to the children.” The respondent also set forth by petition to the Court, that Sir Hugh had, subsequent to the marriage-articles, paid debts contracted before that time of a greater value than the sum in question, which ought to be looked upon as a valuable consideration for the same, and prayed diligence for proving that fact: the Court, on the 5th of December 1718, “ordained the appellant or his doers to confess or deny the fact, viz. That Sir Hugh did, after the marriage, pay debts contracted before to the value of the debt sued for.” The appellant petitioned against this interlocutor, praying the Court to give judgment upon the points in dispute, without putting him to the necessity of a search through his papers to enable him to acknowledge or deny Sir Hugh's payment of some debts: but their lordships, on the 12th of December 1718, “granted diligence at the respondent's instance before answer, for proving that Sir Hugh did pay debts
Page: 328↓
A proof was accordingly adduced, and the Court, on the 29th of January 1719–20, pronounced the following interlocutor: “Having considered the several petitions and answers of the said parties, and the probation adduced by the respondent, and the whole writings and documents in process, especially the marriage-articles, whereby the free and full administration of the estate was agreed to be settled in the person of the said Alexander Campbell, with the bond by the said Alexander to Sir Hugh, containing a faculty to the father to grant competent provisions to his unprovided children, not exceeding 2000 l. sterling, in full satisfaction of their legitim and portion natural, and all that could fall to them by their father's decease, and the valuable provisions and life-rent reserved to the father by the said marriage-articles, whereby he had a sufficient fund to have provided for his children, if the said bond and faculty had not been granted, adhere to the said interlocutor of the 17th of July, 1718; and find that the bond of provision in favour of Captain George Campbell, the respondent's husband is a binding obligation on the appellant; and therefore assoilzie the respondent from the said process of reduction at the instance of the appellant against her.”
Entered 3 Feb. 1719–20.
The appeal was brought from “several interlocutory sentences or decrees of the Lords of Session of the 7th of December 1717, and the affirmance thereof the 8th of January following; also from the interlocutors of the 8th of February 1718, the 17th of July and 12th of December 1718, and also from another interlocutor of the 29th of January 1719–20.”
Heads of the Appellant's Argument.
By the express words of the marriage-articles, Alexander the son was only to be tenant for life, with remainder to his first and, every other son; and these articles must still be the rule, for the deeds of 1688 and 1691, executed by Sir Hugh, whereby Alexander was made tenant in tail, were not in pursuance of the said articles, but a direct violation of them.
The deed executed by Alexander the son, releasing Sir Hugh of any of the covenants in the marriage-articles, and empowering him, notwithstanding thereof, to charge the estate with debt, was as the appellant apprehends, a direct fraud against the articles: for as Alexander, who was bound jointly with Sir Hugh in these articles: could not release Sir Hugh's covenants in favour of the issue of the marriage; so Sir Alexander being by the articles intended to be only tenant for life, he could not do any thing, nor contract any debt, to be a charge on the estate.
The grant or assignment of all Sir Hugh's personal estate could not be any valuable consideration to support that deed, even though Alexander could have done any thing to encumber the estate; because the personal estate was of no value, Sir Hugh
Page: 329↓
Nor is it of consequence, that Sir Hugh might after the marriage have paid debts to the value of 2000 l. For, were that true, (which is still denied), yet he did no more than he had covenanted to do as by the articles the estate settled was to be free from all incumbrances.
Heads of the Respondent's Argument.
The appellant contended in the court below, that the bond, being only payable at Martinmas, 1710, and the obligee dying before that time, it thereby became void, and that these words, “with power to the said Captain George Campbell and his “above-written, after elapsing of the term of payment, to ask, &c. and dispose of the same,” did imply, that the respondent's husband could only dispone or assign the bond after the term of payment was elapsed. But it is plain from the bond itself, as well as from the circumstances in which the parties were at the time of granting it, that the bond is absolute, bearing no condition, only the term of payment suspended to a day certain, which never imports a condition. There is a great difference between a bond of provision, payable at a precise time in such a year, and one payable to children at a certain age, which last has been understood to be conditional; but this bond is payable not only to George Campbell himself expressly, but to his heirs, executors, or assignees. He and the respondent were married a considerable time before the date of the bond; so that it was not to be imagined that the father designed that the bond should become void, if his son died before the time of payment; and that his wife and children, if there had been any, should have wanted subsistence, which must have been the consequence, if the bond were conditional. But the plain reason why the payment of the principal was suspended till the year 1710, was that, at the date of the bond, the appellant's elder brother was a minor, and if he had lived would have been of age before Martinmas 1710: and therefore Sir Hugh, left his guardians should have thought themselves under any necessity of paying the principal sum for the ease of the estate, suspended the payment of it till his grandchild should be of age.
The granting of the faculty, by Alexander to Sir Hugh, was a rational deed; nothing being more just, than that the son, on whom the father had settled his whole, and even so great an estate, should consent to so small a provision as one year's rent thereof to his five brothers and sisters; nor is it every burden imposed by a son upon an estate disponed to him and the heirs of the marriage, that can be reduced as contra fidem; but only a burden fraudulently imposed, without either an onerous or rational cause. And as the deed was rational, so it was onerous, since it was granted with this express condition, that it should be in
Page: 330↓
Deeds against the faith of marriage-articles must be done either before or after the contract, and before the marriage; but the granting of this faculty was a deed done deliberately two years after the marriage, when the said Alexander was under no restraint, or apprehension of his marriage being hindered by his father. The settlement was already made and perfected, and the said Alexander had thereby the absolute fee of the estate, and might have contracted what debts he pleased thereon, there being no irritant or resolutive clause in the settlement against it.
The appellant is served not only heir of provision in general of the marriage, but heir male in special to his father, in the barony of Calder, &c. and so cannot quarrel any of his father's voluntary and gratuitous deeds, much less such an onerous and rational deed as the present.
The appellant contended that the faculty granted by Alexander was discharged by the disposition 1691, with absolute warrandice, which reserved no faculty to burden the estate. But this disposition, 1691, was only to supply an omission in the former disposition as to some of the lands that had not been inserted therein, as appears by the narrative whereon it proceeds. The warrandice in that disposition can never be interpreted so as to warrant against; the said Alexander's own deeds, as those provisions in effect were, though the father had the power of division. The deed granted to the father contains not only a faculty to burden the lands, but also a personal obligation on the son to pay provisions to the extent of 2000 l.; so that if the, faculty to burden the lands were extinguished, yet the personal obligation would still remain.
As a further onerous cause for supporting the said bond, the respondent did prove in terms of the probation granted to her, by her witnesses and vouchers produced in the court below, that Sir Hugh had, after the marriage, paid above 2500 l. sterling for debts of that family, contracted before the marriage, and might have proved much more; all which he might have given to his younger children if he had looked upon them as unprovided for.
Judgment, 7 June 1720.
After hearing counsel, It is ordered and adjudged, that the petition and appeal be dismissed, and that the several interlocutory sentences or decrees therein complained of be affirmed.
Counsel: For Appellant,
Rob. Raymond.
Will. Hamilton
For Respondent,
Tho. Lutwyche.
Sam. Mead.
In the Dictionary of Decisions, vol. 2. p. 22. voc. Pactum illicitum, the interlocutory judgment of the Court of Session (8th February, 1718), finding the bond granted in this case to have been contra fidem tabularum nuptialium, and therefore not binding on the heir of the marriage, is stated as an existing case. But that judgment was afterwards reversed by the Court of Session and such reversal affirmed upon appeal.