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Mitchelson v Moubray. [1635] Mor 5960 (30 January 1635)
URL: http://www.bailii.org/scot/cases/ScotCS/1635/Mor1405960-164.html Cite as:
[1635] Mor 5960
A married woman's deeds in what cases effectual against herself, the husband consenting or not consenting.
Subject_3 SECT. IV.
Personal Bond not binding upon a Wife, although her Husband consent.
Mitchelson v. Moubray
Date: 30 January 1635 Case No. No 164.
An apprising on a bond for borrowed money, granted by a husband and wife, found null; though it was argued that a woman, with her husband's consent, can bind herself effectually to grant a security upon her lands; and her subscribing the bond, though it cannot bind her personally, must at least be equivalent to a consent, that the creditor, upon the husband's obligation, should have access to apprise her lands.
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The deceased Gavin Mitchelson, and Elizabeth Moubray his spouse, being addebted by their bond in certain sums borrowed from the deceased Mitchelson their creditor, for not payment whereof, the said creditor comprises from the said debtor some dwelling-houses in Leith, and thereupon is infeft in the same; likeas thereafter the said Elizabeth Moubray, (who was infeft in conjunct-fee in the same lands before the comprising) compeared judicially before the Bailies of Edinburgh, and ratified, the said comprising, and the Lords' allowance thereof, together with the bonds foresaid, whereupon the comprising was deduced, with the infeftments to follow thereupon, and renounced all right which she had to the said lands, either by conjunct-fee, liferent, or terce, or any way whatsoever, and made faith, that she was not compelled thereto, but that she did it voluntarily, and of her own free will, and obliged her never to come in the contrary thereof, as the said act, under the hand of Mr Alexander Guthrie, town-clerk of Edinburgh, bears; and George Mitchelson, chirurgeon in Edinburgh being infeft in these lands, as heir to his umquhile father, a compriser, he pursues removing therefrom against the said Elizabeth Moubray; who, defending herself with the said infeftment of conjunct-fee, granted to her before the comprising, and the pursuer opponing her judicial renunciation and ratification, the defender duplied, That that ratification could not prejudge her, because it was not subscribed by her, but was only the assertion of a clerk to an inferior court, which ought not to be of force to take away her liferent infeftment; and the other opponing the solemnity thereof, and the preceding bonds and comprisings, which, being so ratified by her, add strength to the bonds, albeit they in law had not been of force to have produced personal execution against her, seeing they are actus geminati, and all conjoined together, are of that same strength as if her husband and she had disponed the lands, and that she had judicially ratified the disposition;——The Lords found the exception relevant, notwithstanding of the ratification produced; for the Lords found that the bonds, albeit subscribed also by the woman, yet being of borrowed money, and done by her with her husband stante matrimonio, could not be obligatory against her, nor produce caution against her; and also found, That a ratification, being done by an act extracted out of the town books, as said is, under the clerk's subscription, did not derogate to the defender's right of conjunct-fee, seeing it was done by her in the time of marriage standing, her husband then being in life, and that the same was not warranted by her subscription, nor was there any other writ made before this judicial act, whereby she had given her consent, and subscribed the like ratification, without which her subscription of some preceding writ of this tenor, and the said ratification judicially made of the comprising, and renunciation of her foresaid right, under the clerk's hands only, and not subscribed by herself, with her own hand, or by notaries for her, if she could not write, could not prejudge her right. See Proof.
Act. Cunningham et Johnston.Alt. Mowat et Deans.Clerk, Scot.
Fol. Dic. v. 1. p. 398. Durie, p. 747.
*** See Spottiswood's report of this case, Div. 9. h. t.
*** In conformity with the above was decided a case, July 1725, Irvine against Representatives of Dougal. See Appendix.
