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Scottish Court of Session Decisions >>
Mowat v Katharine Lauder. [1697] Mor 6395 (9 February 1697)
URL: http://www.bailii.org/scot/cases/ScotCS/1697/Mor1506395-044.html
Subject_1 IMPLIED CONDITION. Subject_2 SECT. VIII.
Obligations, or Renunciations, granted upon an expectancy disappointed, or upon the supposition of a fund of payment of which the party is afterwards deprived.
Mowat v. Katharine Lauder
Date: 9 February 1697 Case No. No 44.
A Lady's jointure was reduced by a creditor who had inhibited before her contract of marriage. Having once founded on the contract by which her terce was renounced, she could not recur to the terce.
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Arbruchel reported the Creditors of Mowat of Buchquholly against Katharine Lauder, Lady Buchquholly. Commissary Elphingston having reduced her liferent provision on an inhibition prior to her contract of marriage, she claimed her terce, as if she had not been provided at all. Answered, By her contract she had accepted of her jointure in satisfaction of all terce and third, and so having renounced it, and founded on her contract, she may not now recur thereto. Replied, Her conventional provision being annulled, it was optional to her to claim her legal terce, as if there had been no contract at all; even as if I buy lands owing me a servitude, it extinguishes, quia res sua nemini servit; yet if my property in these lands be annulled, my servitude reconvalesces. But the Lords considered the decision between Lady Balagan and Lord Drumlanrick, No 2. p. 605. where a wife having accepted a provision matrimonial, and being excluded by the ward, was not suffered to seek a terce in supplement thereof; and following the same in this case, repelled the Lady Buchquholly's allegeance. But, in the practick cited, the impediment was only temporary; whereas here the debarment was total; only the ratio decidendi seems to be the same. See Terce.
Fol. Dic. v. 1. p. 428. Fountainhall, v. 1. p. 765.
