Scottish Court of Session Decisions

Subject_1 HUSBAND and WIFE.
Subject_2 DIVISION XI.

Marriage Dissolving within the Year, all things are Restored hinc inde.
Subject_3 SECT. II.

Rights flowing from third parties in contemplation of the marriage.

Thomas Calder and Andrew Morison,
v.
Elizabeth Ross and Allan M'Intosh her Spouse, and Sir John Campbell of Calder

Date: 8 June 1610
Case No. No 379.

Found, that the marriage dissolving by the husband's decease within the year, all things must return hinc inde, not only with respect to the defunct's heirs, but also with respect to a third party who was bound to infeft the wife, and accordingly did infeft her.

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Thomas and Andrew, tenants of the lands of Easterdues, summon Elizabeth and Sir John to hear and see it found whilk of them they should answer and obey of the duties of the said lands. Alleged for Elizabeth, That she ought to be answered, and Sir John can have no right thereto; because, by contract matrimonial betwixt Sir John and umquhile Duncan and her they have conjunct-fee in the lands redeemable by 3000 merks; lykeas marriage followed, and the lands are not redeemed. Answered and replied for Sir John, The allegeance ought to be repelled, and he answered, because Sir John is infeft and in possession, and she can pretend no right to the contract, because the contract having respect to a subsequent marriage betwixt her and Duncan, true it is, that Duncan died within year and day after solemnizing thereof, whereby the marriage is dissolved, and quhilk decease must produce the same effect and benefit to Sir John as it would have produced to Duncan's heirs, if Duncan had been disponer himself intuitu matrimonii; in whilk case, the disposition would have ceased, and therefore, the said Sir John is in like manner free of the obligement of the contract; especially seeing, by the contract, the lands are disponed to Duncan and Elizabeth, and their heirs betwixt them, quhilks failzing, to return to Sir John; an also in respect that Alexander Campbell apparent heir of umquhile Duncan, personally present, is content to repone her against the contract, and Sir John becomes presently caution for Duncan's heirs and executors, to refund to Elizabeth whatsomever goods and benefit she can verifie Duncan to have received frae her, and to warrant her at their hands for whatever thing they may crave of her by the contract; the Lords find the answer and reply relevant, and assign a term to Sir John to prove.

Fol. Dic. v. 1. p. 413. Nicolson, MS. No 45. p. 24. *** Hadington reports the same case:

The laird of pursued a double poinding against the laird of Caddell upon the one part, and Ross the relict of umquhile Duncan Campbell, his brother, on the other part, contending for the maills and duties of the saids lands. It was alleged, that Ross should be answered, because she offered to prove, that her umquhile husband and she were infeft in the lands controverted in conjunct fee, by the laird of Caddell, and by virtue thereof in possession, and so could not be impeded by Caddell. To this was answered, That if any infeftment her umquhile husband had, it was to himself and the heirs to be begotten of his body, whom failing, to return to the laird of Caddell; and the said Duncan has deceased without heirs of his body; and as to her conjunct fee it was expired, because her husband died within year and day after the marriage, no children being procreated of that marriage, and therefore she could bruik no conjunct fee of his lands. To this was first answered, that the provision contained in Duncan's infeftment, that if he died without heirs of his body the lands should return to the Laird of Caddel, was not modus habilis, without a declarator; which the Lords found not relevant; for seeing the lands were disponed to be holden of Caddell's self, with provisions of returning to himself in case of Duncan's decease without heirs of his body, and Caddel needed no other declarator nor service but the provision of the charter. Thereafter it was alleged by the said Ross, relict of the said Duncan, that she should be answered of the mails and farms of the said lands; because albeit her husband died within year and day after their marriage, without bairns procreated, yet the expiring of her conjunct fee could not come in by way of exception in a double poinding, because that required declarator by way of action, consisting of many circumstances in facto, which behoved to be proved; likeas the declarator should be sought by the proper contradictor, viz. the heir of the defunct, which not being done, in this case, the laird of Caddell not being heir, and not having pursued any such declarator, and not having interest to pursue the same, she should be answered and obeyed. To this was answered by Caddell, that the practice was inviolably observed in this country, that the husband dying within year and day after the marriage without bairns, the contract, with the conjunct fee, tocher, and all other commodities resulting thereupon expired, and returned to the own former estate, as was practised betwixt the Abbot of Balmerino and the Laird of Coudland; the Earl of Eglintoun and the Laird of Bargany; the Laird of Garlies and my Lady Maxwell, and diverse others: and as to the declarator, it was noways necessary, especially anent the opposition and restitution of the said woman, because he was presently content to restore her to all that her husband got by her. She answered, that he was not habile to do it; because she being infeft in lands before her marriage, she resigned the same for new infeftment to be given to the said Duncan her spouse and her in conjunct fee, and to the heirs to be gotten betwixt them; which failing, to the said Duncan's heirs and assignees whatsomever; to the which the Laird of Caddell could not succeed as heir, and so he was not able to repone her to her own right: Notwithstanding whereof the Lords accepted of Caddell's offer of caution for her reposition to all things which she had paid or gave to the defunct, or in favour of his heirs, by occasion of her marriage upon him; and in respect thereof, found it not necessary that any declarator should be pursued for the reposition of the parties to the state wherein they were before the contracting of their marriage; but that it might came in by way of exception in this double poinding; which in my private opinion I thought strange, and a novelty whereof I had not seen any preceding practick.

Haddington, MS. No 1886.