Scottish Court of Session Decisions

Subject_1 HUSBAND and WIFE.
Subject_2 DIVISION I.

What subjects fall sub communione bonorum et debitorum.
Subject_3 SECT. IX.

Effect of Jus Mariti.

Campbell
v.
Sandilands,

Trotter
v.
Campbell

Date: 10 January 1682
Case No. No 53.

Found in conformity with the above.

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Patrick Telfer having, before his marriage with Agnes Campbell, relict of Andrew Anderson printer, renounced his jus mariti in all her means, (except L 10,000 she was to contract in portion) with power to her to dispose of the superplus renounced in favours of her children of the first marriage, or any other person, or to himself if she thought fit; and she being obliged to pay L. 10,000 of tocher, and he obliged to provide her to the liferent of L. 1200 yearly, his creditors arrested all her means, and pursued a forthcoming.

The Lords found, That there being a synalagma in the contract, between the portion and the jointure, the L. 10,000 ought to be burdened with her liferent after the husband's decease, and the creditors to find sufficient caution for the same in that event; and found, That the renunciation of the jus mariti not being made in favours of the wife's former children, nor any obligement upon the husband for that effect, but only conceived indefinitely in favours of the wife, by way of a faculty to dispose, recurred to the husband by the marriage, which is a legal assignation, in regard she was not denuded in favours of any person before the marriage.

Fol. Dic. v. 1. p. 389. Harcarse, (Liferents.) No 668. p. 190.

1682. March.

Patrick Telfer having verbally settled, as to terms of marriage, with Agnes Campbell, relict of Andrew Anderson printer, whereby she was to give L. 10,000 in tocher, reserving the printing irons, and other estate to herself, before the contract, she disponed all her estate to her brother, upon his back-bond to pay over and above the L. 10,000 of her tocher, her debt, and the superplus to the children of the first marriage, in such proportions as she should appoint; and thereafter Patrick renounced in the contract his jus mariti, and consented to her disposing of all at her pleasure to her children, or any she should appoint. Patrick's creditors arrested the sums reserved, and contended, That the settlement above-mentioned was but a fraudulent contrivance to cut off the husband's creditors; and that the jus mariti, notwithstanding the renunciation thereof, did recur to the husband, seeing the conveyance to the brother appeared to be in trust to the wife, and she always continued in possession of the things disponed; and it cannot be instructed she was debtor to the bairns.

The Lords did not find any fraudulent conveyance by the back-bond, and that the wife being denuded by the contract of marriage, the renunciation of the jus mariti was effectual; and assoilzied the children, &c. from the declarator at the instance of the husband's creditors.

Fol. Dic. v. 1. p. 389. Harcarse, (Contracts of Marriage.) No 345. p. 84. *** P. Falconer reports the same case:

In an action for making arrested goods forthcoming, pursued by Trotter creditor to Patrick Telfer against Agnes Campbell, spouse to the said Patrick, wherein the arrester craved, That Patrick Telfer's wife might make furthcoming the sum of 10,000 pounds, which she was obliged in her contract of marriage with Patrick to pay to him; as also, that her moveables and printing presses might be made forthcoming for payment of the said Patrick his debt, wherein they were creditors to him; it was alleged for the defender the wife, That she could not be decerned to make forthcoming the 10,000 pounds foresaid, because her husband was obliged to eik 20,000 pounds of his own means, for her liferent use, and the bairns of the marriage; and it being a synalagma, the creditors could be in no better case than the husband; but so it was, that the husband behoved to employ both sums for her liferent. The Lords sustained the action for making forthcoming, the creditors finding caution for her liferent of both sums. It was further alleged for the wife, That her moveables and printing presses could not be affected by the husband's debt, because by contract of marriage foresaid, and in contemplation of the tocher above written, and that there was an overplus of means belonging to her, and that her children of the first marriage were unprovided, he renounced his jus mariti, and did consent, that she should dispose thereof in favours of her children, or any other way she should think fit. The Lords found, That albeit the husband had renounced his jus mariti, yet she not having actually disposed on the same before the marriage, nor exercised the faculty after the marriage, it did recur and fall back under the jus mariti, especially seeing that by the contract, the wife had not only a power to distribute among her children, but to her husband, or any other she thought fit; but if the reservation had been simply in favours of the children, and that the faculty had not been further extended, the Lords inclined to have sustained the defence. See Mutual Contract.

P. Falconer, No 16. p. 8, *** This case is also reported by Sir P. Home:

1681. December.—Sandilands children to the deceased Bailie Sandilands, having obtained a decreet against Patrick Telfer merchant in Edinburgh, for the sum of L. 10,000 due to them after count and reckoning, he having intromitted with their estate as tutor; and they having arrested the sum of L. 10,000 in the hands of Agnes Campbell, spouse to the said Patrick Telfer, which she had provided to her husband by her contract of marriage, as also several other debts that were due to the wife, and having pursued to make arrested goods furthcoming, it was alleged for the wife, That she could not be obliged to make the L. 10,000 furthcoming, because the said Patrick Telfer her husband was obliged by the contract of marriage to employ 20,000 merks of his own means, together with the said tocher, being in all 35,000 merks, to her and her husband in liferent, and the children of the marriage in fee; and the husband not having performed his part, the wife was not obliged to pay the tocher of L. 10,000. And as to the sum due by other debtors, the same ought not to be made furthcoming for payment of her husband's debt, as belonging to her husband jure mariti, because the husband, by a disposition and renunciation, of the date of the contract of marriage, had renounced his jus mariti of all goods belonging to the wife, except the foresaid L. 10,000 in favours of the children of the first marriage; as also before she entered in a treaty of marriage with said Patrick Telfer, she disponed her moveables to Robert Currie, her brother-in-law, for the use and behoof of her creditors and children of the first marriage, with the reservation only of the said L. 10,000, as her tocher, and portion for her second marriage. Answered, That albeit the husband be obliged in the contract to employ a certain sum in the terms foresaid, yet that can only furnish a personal action against the husband for implement of the contract of marriage, whose faith she has followed by the contract; and albeit he has not fulfilled his part of the same, yet that cannot be obtruded against the pursuers, who are lawful creditors, as is clear by many decisions, which, if it were sustained, were a compendious way to evacuate the diligence of just and lawful creditors, who by that means should never affect sums contracted in name of tocher, for payment of their debts, for the husband might never fulfill his part of the contract of purpose that the wife's tocher might not be affected, but remain secure to the children; and if the wife and her friends have not provided other-ways for the security of the obligements in the contract in her favours, either by real security or sufficient cautioner, sibi imputet, but that cannotpre judge the husband's lawful creditors. And the disposition and renunciation of the husband's jus mariti cannot prejudge lawful creditors, because albeit it proceeds upon a narrative of reserving the rest of the wife's estate, in favours of the children of the first marriage, yet the dispositive words of the right are only in favours of the wife, giving her power to dispose of the same in favours of the children, or any other person she shall think fit, and to manage the same as a separate stock from her husband; and she being fiar of the moveable interest, the renunciation by the subsequent marriage doth accresce and belong to the husband, jure mariti, as was expressly found in the case of the Lord Collington, No 50. p. 6828, and several others, where the Lords found that the husband's right and interest in the wife's moveable estate, neither was, nor could be renounced by any such right, even albeit the wife was denuded of that estate prior to the marriage, in favours of a third party, it being made appear that the same was only to the wife's behoof; and such a renunciation is repugnant to the common principles of law and reason, and to that power and interest that a husband has to the wife's moveable estate; and, as by no paction and agreement it can be provided, that a husband should not be liable for the wife's debt contracted before the marriage, so neither can it be provided by any paction or agreement, that the husband should not have right to the wife's moveables jure mariti, but if he should renounce the same, that obligation by the renunciation does still recurr and belong to the husband jure mariti, which is founded upon the public law of the kingdom cui privatorum pactis derogatur. The Lords decerned the L. 10,000 provided in tocher to be made furthcoming to the husband's creditors, they finding caution for her liferent of the sum, in case she should survive her husband; but found, that faculty of disposal of the superplus means did return to the husband, notwithstanding of the renunciation, in respect the wife had not exercised that faculty before marriage, nor since, before the pursuers arrestment; but if the reservation had been simply in favours of the children, and that the faculty had not been farther extended, the Lords inclined, in that case, to have sustained the defence.

Sir Pat. Home, MS. v. 1. No 66. p. 98. *** Fountainhall reports the same case:

Sandilands contra Agnes Campbell and Patrick Telfer her spouse, ‘ The Lords, upon Saline's report, found that Agnes the defender is not obliged to pay the tocher of L. 10,000 to her husband, or his creditors, unless they find sufficient caution for performing the obligements in the contract of marriage in favours of the wife for her liferent and jointure: And find, that the husband's renunciation of the jus mariti, and his obliging himself to consent to any right made by the wife in the terms of this obligation, does not so denude the husband as that the right does not recur by the subsequent marriage; but that, notwithstanding thereof, the right recurs to the husband and his creditors, and that the wife, during the marriage, cannot dispone thereon, she not having disponed thereupon before the marriage by virtue of that faculty reserved to her in the contract.’ At pronouncing, the defenders procurators alleged absolvitor quoad the 2d point, because they offered to prove that she had disponed prior to the marriage, in terms of the interlocutor. ‘The Lords ordained the said disposition alleged upon to be produced, reserving to the pursuer's procurators to be heard against the same.’

I heard some lawyers condemn that recurring of the jus mariti back to the husband, as a ridiculous incongruous subtilty: See Collington and his Lady's case, No 50. p. 5828. where this was first decided; but it were hard (though such renunciations of the jus mariti should and may stand good and effectual against husbands themselves,) to extend them against his creditors to defraud them. As to the 1st part of the interlocutor anent correspective and mutual obligations, where the one correlate is the mutual cause of the other, See Everhard, loc. legal. p. 697. Item, December 1672, between Arthur Forbes of Balveny and Sir Charles Erskine, No 12. p. 5076. where this is fully debated.

1682. March 17.—The point betwixt Dr Trotter and Patrick Telfer and Agnes Campbell his spouse, being this day reported by Saline, ‘The Lords sustained her disposition.’

Fountainhall, v. 1. p. 168 & 179.