Scottish Court of Session Decisions

Subject_1 PRESUMPTION.
Subject_2 DIVISION I.

Presumed Alteration and Revocation.

Kinloch
v.
Rait

Date: 15 December 1674
Case No. No 9.

A donation by an infeftment granted by a man to his wife, above the provision in her bontract of marriage, was found revocable pro tanto by an annualrent granted to his daughter out of the same lands.

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Mr, Robert Kinloch gave infeftment to Jean Rait, his spouse, in some parcels of his lands of Lethrie, bearing to be in satisfaction of the provisions in her contract of marriage; and thereafter gave her infeftment in the rest, for love and favour; after all, gave a bond of provision of L. 1000 in favours of Janet Kinloch, his daughter, with an infeftment of annalrent out of the saids lands of Lethrie. In a competition betwixt the mother and daughter for the rents of the lands, it was alleged for the daughter, That the infeftments granted to the wife were donations betwixt man and wife, stante matrimonio, revocable and revoked by the annualrent granted to the daughter, at least the infeftment granted for love and favour. It was answered, That here there was no express revocation, but an indirect conjectural revocation, which is not sufficient, seeing the husband might both grant a liferent of the whole land to his wife, and an annualrent to his daughter forth thereof, not to burden the wife's liferent, but to burden the fee.

The Lords found, That seeing the annualrent of the daughter was not suspended as to its effect till the mother's death, that it did import a revocation of the mother's liferent pro tanto as to what was granted for love and favour.

Fol. Dic. v. 2. p. 133. Stair, v. 2. p. 293. *** Dirleton reports this case:

The deceast Mr Robert Kinloch, portioner of Lethrie, having granted, after he was married, a liferent right to his wife, by infeftment in some of his lands, in satisfaction of any further provision, did thereafter give her an additional jointure and infeftment in other lands; after which he gave a right of annualrent, forth of the additional lands, to his daughter Janet Kinloch.

The daughter, and her husband Mr John Dickson, did intent a poinding of the ground, upon the said right of annualrent; in which process Jean Rait, relict of the said Mr Robert, compeared, and defended upon her foresaid rights, being anterior to the said infeftment of annualrent.

It was replied for the pursuer, That, as to the first right for provision of the wife, she did not make question but that, being in satisfaction of any other provision, as said is, the additional right granted thereafter was for love and favour, and donatio inter virum et uxorem, and revoked tacitly by the pursuer's infeftment or annualrent.

The Lords found accordingly, That the said posterior right was revoked by the annualrent pro tanto, without prejudice to the relict of the superplus, if any be, the annualrent being satisfied.

Reporter, Newbyth. Clerk, Gibson. Dirleton, No. 204. p. 91. *** This case is also reported by Gosford:

In a double poinding raised by the tenants of Lethrie, as being distressed by decreets at the instance of both the said parties, compearance was made for Janet Kinloch, who craved preference upon her infeftment of an annualrent of L 1000 and a decreet of poinding of the ground: There was likewise compearance made for the said Jean Rait, who craved to be preferred, because, long prior to Janet Kinloch's infeftment, she stood infeft in a parcel of the said lands as her liferent and provision by her contract of marriage; as likewise, she produced two posterior infeftments out of other parcels of the said lands granted by her husband, which were both prior to the said Jean's; and alleged, That the husband's possession being the wife's possession in law, she ought to be preferred as having the first rights clothed with possession; neither could the same be taken away by any posterior right granted by a father to his daughter who was not a true and lawful creditor, their provisions being ambulatory and revokeable by the father during lifetime. It was answered for the said Janet, the daughter, That notwithstanding she ought to be preferred to the two last infeftments granted to the relict Jean Rait, because her first infeftment being given in full satisfaction of her contract of marriage, the subsequent infeftments were only donations inter virum et uxorem, and so were revokeable by the husband, and de facto revoked by the right made to his daughter; and albeit he was not obliged to grant the same, yet it being debitum naturæ, and perfected and made public, by infeftment, it is always preferable and ought to be sustained as a revocation of any voluntary deed by the father, which depends not upon any contract of marriage The Lords did prefer the daughter to the relict as to her last two infeftments, seeing they could only be interpreted to be for love and favour, and were not for implement of her contract of marriage, or granted as a remuneration for any supervenient advantage that did accresce to the husband by the wife, and therefore the daughter's right, though posterior, being perfect and public and such as could not be reversed or questioned, but at the instance of prior creditors of the father's, it ought to be preferred to the relict's right which was revokeable in law, and done by this right made to the daughter, which they did interpret to be a sufficient ground thereof.

Gosford, MS. No. 723. p. 438.