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Gordon of Daach v Gordon of Techmuiry. [1695] 4 Brn 260 (00 January 1694)
URL: http://www.bailii.org/scot/cases/ScotCS/1695/Brn040260-0584.html
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Gordon of Daach v. Gordon of Techmuiry
1694 and
1695.
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[See the prior parts of this Case, supra, pages 51 and 77.]
1694.January 18.—Mersington reported Gordon of Techmuiry against Gordon of Daach. The Lords adhered to their former interlocutor, and preferred the children of the first marriage to the son of the second: for, though a clause of conquest, in a contract of marriage, does not impede a father's dominion to dispose on it, either to strangers, or, in a second contract, to a second wife and children, yet these provisions must be rational and moderate; and, therefore, seeing the specific obligements of the second contract were more than doubled, they found the father's disposition of thir lands to his daughters of the first marriage, was preferable to the clause in the second contract, burdening the lands of Enchries, and none other, with that 6000 merks.
Vol. I. Page 592.
February 23.—Mersington reported Gordon of Daach against Gordon of Techmurie. The Lords so far rectified their former interlocutor, 18th January last, that they found the specific sums, contained in the two respective contracts of marriage, were to be made up and fulfilled out of the several conquests of these two marriages primo loco; but, if the conquest of the first marriage was not able to implement the contract's special obligements, then the children of the first marriage might have access to affect the conquest during the standing of the second marriage, et e contra.
Vol. I. Page 615.
1695. February 8.—Mersington reported Gordon of Daach against Gordon of Techmury, mentioned 18th January 1694. The Lords had first found the heir of the second marriage liable in quantum, erat lucratus; and thereafter, that the conquest made during the first marriage behoved to go first towards implement and satisfaction of the obligements conceived in favours of the bairns of the first marriage; and, until that were exhausted, they could not recur to affect the conquest during the standing of the second marriage. Daach now insisted against the heir of the second marriage super eo medio nuper perveniente, that he had served himself heir.
Replied,—That the bonds he was pursued on were granted in lecto, and so could not reach him, the heir. This deathbed appearing only to be an infirmity in the granter's back, and rather vitium than morbus sonticus, and that he was ten years under it, and the bonds were three years before his death; they doubted much of such a deathbed, but allowed a probation anent his state and condition at that time, with this declaration, that, if Techmury, the heir, succumbed, they would burden him with large expenses.
Vol. I. Page 667.
[See the remaining part of this Case, 11th June 1697, Dictionary, page 3299.]
