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Scottish Court of Session Decisions >>
Craig v Edgar of Wedderlie. [1674] Mor 838 (20 November 1674)
URL: http://www.bailii.org/scot/cases/ScotCS/1674/Mor0200838-027.html Cite as:
[1674] Mor 838
Subject_1 ASSIGNATION. Subject_2 Whether Assignation not intimated denudes.
Craig v. Edgar of Wedderlie
Date: 20 November 1674 Case No. No 27.
A simple retrocession, without intimation, evacuates an assignation, not intrmated.
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The Lords found, That a bond bearing annualrent, being assigned by a woman to her former husband, by her contract of marriage; and the assignation not being intimate, a retrocession did settle again the right of the said bond in the person of the wife; quia unumquodque dissolvitur, eo modo quo contrabitur. And the said bond being thereafter assigned in favours of the second husband, he and hi-executors had right to the same; and that it was not in bonis of the first husband though the retrocession was not intimate until after his decease.
Reporter, Lord Glerdoick.Clerk, Hay.
Dirleton, No 195. p. 85.*** The same case is thus reported by Stair:
Dec. 2. 1674. Wedderlie being debtor to Beatrix Craig in 700 merks by bond, she, by her contract of marriage, assigned the same to John Greenlees, her husband, who, before his death, gave her a general assignation to all sums of money belonging to him; she did thereafter transfer the same sum to Mr John Louthian, her second husband in her contract of marriage with him; after whose death she is confirmed executrix to him, and thereupon pursues Wedderlie for payment, who alleged no process, because the right made by her first husband to her, was not intimate in his life; and so the sum remains in bonis of the first husband, and she must confirm as executrix to him; for albeit marriage following will stand as an intimation of the husband's right jure mariti, which is a legal assignation; that cannot be drawn in consequence to this assignation by a husband to his wife, stante matrimonio.—The pursuer answered, That this sum being heritable, did not fall to her first husband jure mariti, but was assigned to him by her contract; which assignation was never intimate; so that the right being imperfect, and standing yet in her own person, is not in bonis of her first husband; but the assignation to him being an incomplete right, is evacuate by his general assignation to her, which needed no intimation, seeing her assignation made none.
