Scottish Court of Session Decisions

Subject_1 MINOR.
Subject_2 SECT. VII.

Lesion in extrajudicial proceedings.

Carmichael of Maulsley and his Lady
v.
The Lady Castlehill and John Sinclair of Stevenson, Younger, her Husband

Date: 24 February 1698
Case No. No 119.

A Lady, minor, found lesed by her contract of marriage.

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Sir George Lockhart having granted a bond of provision to his daughter for L. 5000 Sterling, she is married to her cousin, James Lockhart, younger of Castlehill, and with the advice of friends there is a contract of marriage framed, by which she assigns her portion, then extending with the annualrents to 110,000 or 115,000 merks, and, in lieu thereof, she is provided with a jointure out of the lands, said to be worth L. 500 Sterling per annum. Castlehill, her husband, dying abroad, and she being now married to my Lord Carmichael's son, the Laird of Maulsley, and being still minor, she revokes her first contract of marriage with young Castlehill, and raises a reduction of it against Stevenson and his Lady, on these reasons, 1mo, That it is null, being entered into by a minor wanting curators, and her husband could not authorise her, especially in a post-contract drawn up after the marriage; for that were to make him auctor in rem suam; 2do, She was enormly lesed in disponing away the fee of a vast tocher, without any clause of return of the whole, or a part, in case the marriage dissolved without children by his death, which event had existed, and had got nothing but a liferent of lands not worth 7000 merks per annum, which was but the annualrent of her own portion; so, in effect, she had nothing from Castlehill; and many other inequalities in the terms and conditions of the contract were insisted on to evince her lesion.—Answered to the first, Women-minors are by no law restrained to marry, nor to enter into contracts of marriage; and a wife who is major, entering into such a contract, is destitute of authority, seeing her husband can no more authorise her than a minor in rem suam; so that a minor can plead no nullity of her contract, except she qualify lesion, which brings all to the second reason of reducing; and there can be no definition of enorm lesion, where there is no fixed norma, there cannot be an enormity; but so it is, contracts of marriage and provisions have no standard, save the estate of the husband, and the various humours and inclinations of the parties contracting; so that if there be any casus arbitrarius in law, this is one. Now, if we consider Castlehill's estate, which was about L. 1000 per annum, the jointure given her is far beyond a rationalibus tertia, being a just half of the whole; and whereas the 8000 merks provided to the daughters is complained of, as far below their mother's tocher, and so urged as an evidence of the unequal terms in which the contract was drawn up, yet if that case of the daughters had existed, with the Lady's jointure, the heir would not have had so much behind as would have served him for an aliment; so the conditions were rather exorbitant than mean. And as for tochers, how great soever they are, settled eo animo by parents on their children ut alienentur, and that they may be assigned by them to their husbands in their contracts matrimonial, and the clause of return of such tochers, is unusual and extraordinary; and that Sir George Lockhart, her father, in his second contract with my Lord Wharton's daughter, notwithstanding his own vast estate, and a great tocher, secured her only in L. 600 Sterling per annum; and the Lady Salton, who brought more than 100,000 merks of portion, got only 7000 merks by year. And President Spottiswood, in his Decisions, voce Husband and Wife, 28th February 1635, Sluman contra Ker, No 332. p. 6117. shows, where a minor wife was provided only to the liferent of her tocher, yet the Lords found it no lesion; and at most, the Lords sustain the reason of minority and lesion, not to reduce the contract in toto, but only to rectify and supply its deficiency and shortcoming, as was found, 22d November 1664, M'Gill contra Ruthven of Gairn, No 77. p. 5696. voce Homologation. And in Montgomery, No 43. p. 5803. a transaction was sustained, made by his Lady's curators, when minor, settling a locality in place of the courtesy, which never existed; and the like was done in Aberlady's case with his curators, who bought the Lady's jointure at six years purchase, and yet she died within a year after the transaction, and was alleged to have a cancer in her breast at the time; even as it was contended in the former case of Mr Francis Montgomery's, that the Lady Leven was known by physicians to be unfit for procreation of children, and so there never could be a curiality; yet both transactions were sustained as rational.—Replied for Maulsley, Though minors are reputed majors, in so far as concerns the entering into marriage, yet as to the terms and conditions, they are altogether incapable; and the Lords annulled the Dutchess of Monmouth's contract of marriage, because it provided the fee of her lands to his heirs, though of another marriage.* And 7th March 1623, Lord Bargeny contra his Son, voce Personal and Transmissible, a contract is likewise reduced on minority and lesion. And the Roman law is very plain, that restitution in integrum is granted to minors, where they are lesed per immodicam dotem et donationem, tit. Cod. Si adversus dot. restitutio postul. et si adversus donationem; and by Justinian's Novels, there was a precise equality introduced

* See No 8. p. 2369.

inter dotem et donationem propter nuptias; and whatever majors, who are rei suæ arbitri, may yield in their contracts, that is no rule to minors, but their standards must be what majors, well advised, and acting on rational grounds and considerations, would do in such a case.— The Lords found the Lady Maulsley lesed by her first contract of marriage; but reserved to themselves to consider, if this should import a total restitution against the articles of it, or only a rectification, to bring up the terms to an equality and equilibrium.

Fountainhall, v. 1. p. 827.