Scottish Court of Session Decisions

Subject_1 PACTUM ILLICITUM.
Subject_2 SECT. VI.

Pactum contra Fidem Tabularum Nuptialium.

William M'Guffock of Rusco, and his Lady,
v.
David and James Blairs, Sons of the second marriage to Hugh M'Guffock, the said William's Father

Date: 28 January 1709
Case No. No 30.

A person disponed an estate to his eldest son, in his son's contract of marriage, warranting it to be worth a certain yearly value, and he burdened another estate with making the same good. Before the marriage, he took a discharge from the son of this obligation. In a reduction of the discharge against the father's other representatives, to whom the separate estate was disponed, the pursuer's estate falling short of the rent at which it was warranted, the Lords reduced the discharge as contra fidem.

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Hugh Blair, alias M'Guffock of Rusco, in his contract of marriage with Mrs Margaret Dumbar, daughter to Sir David Dumbar of Baldoon, his second Lady, provided her to a liferent annuity of L. 1,000 Scots, and the children of the marriage to 50,000 merks. Thereafter in anno 1695, in a contract of marriage betwixt William M'Guffock, his eldest son of the first marriage, and Mrs Elizabeth Stuart, daughter to the Laird of Ravenston, he disponed the estate of Rusco in favours of William and the heirs-male of the marriage, with the burden of 45,000 merks of debt, and obliged himself to warrant the lands disponed to be worth 8,000 merks of yearly rent, and burdened his other estate with making the same good and effectual, in case the rent of the lands disponed fell short. Hugh M'Guffock, after his eldest son's contract, before his marriage, entered into a transaction with him; whereby the father gave him some land and moveables not contained in the contract; and the son obliged himself to pay all his father's just and lawful debts, and discharged the obligement to make the lands disponed to him worth 8,000 merks yearly; and the father, with consent of his son the bridegroom, disponed to David and James Blairs, two sons of the second marriage under pupillarity at the time, some lands out of which the father stood obliged to make those disponed to the eldest son worth 8,000 merks of rent. William M'Guffock, now of Rusco, raised reduction of the dispositions to David and James Blairs, as granted contra fidem tabularum nuptialium.

Answered for the defenders; They were creditors by their mother's contract of marriage in 50,000 merks, in prejudice of which provision the father could do no voluntary gratuitous deed in favours of his eldest son of the first marriage, but what not only they might quarrel upon the act of Parliament 1621, but did subject him, who was alioqui successurus passive, to the payment of their previous debt; for, by our law and practique, a disposition of heritage to an eldest son even in his contract of marriage is reckoned præceptio hæreditatis, and infers the passive title of successor titulo lucrativo post contractum debitum; seeing, though such a contract of marriage be onerous quoad the wife's liferent, it is lucrative and for love and favour, in so far as concerns the eldest son, Stair, Book 3. Title 7. § 3. 2do, Though any deed in favours of the father might be reduced as contra fidem tabularum nuptialium, the deeds quarrelled must stand; because, made to the defenders who had no accession to the fraud, which is personal in the father, and no vitium reale. A ground of reduction upon fraud cannot militate against innocent third parties acquiring for onerous causes, July 16th 1672, Duff contra Fowler, voce Personal and Real; and the defenders (who were noways partakers of their father's fraud, yea by reason of their non-age, incapable to know any thing of the transaction) have the dispositions in implement of the provision in their mother's contract of marriage, which is a most onerous cause.

Replied for the pursuers; It is irregular and incongrous in hoc statu, to argue concerning the pursuer's being liable personally for the debt claimed by the defenders; because, the present question is not about the cause of the deed, for which the defenders may pursue as accords, but the reduction of the deed itself made fraudulently contra fidem tabularum nuptialium, which was reducible in his father's lifetime, when the pursuer could neither really, nor by fiction, be his heir; ‘Et quod ab initio non valuit, tractu temporis non convalescit.’ 2do, Albeit the defenders are not presumed to have been conscious of their father's deed in their eldest brother's contract of marriage; his knowledge and deed are to be reputed theirs, Who were pupils under his legal administration; because, Nemo debet ex alieno dolo lucrari. And albeit a tutor's fraud cannot be a ground to take from his pupil what is already his property; yet “Dolos tutoris nocet pupillo in eo negotio in quo jus acquirit pupillo, L. 10. § 5. D. Quæ in fraudem creditorum.” By the same analogy of law, the oath of a wife præposita negotiis proves against and prejudiceth her husband, December 7th 1675, Dalling contra M'Kenzie, No 212. p. 6005. Yea, Paton contra Paton, No 26. p. 9475.; it being communed at a contract of marriage, that the son should not be subject to debts or children's provisions, the Lords reduced a bond taken from him betwixt the contract and marriage by the father, in favours of creditors or other children, as depending upon the father's deed, contra fidem tabularum nuptialium. So that there is an evident distinction betwixt directly acquiring to a third party, by one who in ipso negotio is in mala fide; and a third party's purchasing bona fide for an onerous cause, from a person, what he mala fide had formerly acquired to himself.

Duplied for the defenders; The right to them for onerous causes cannot be taken from them by the fraud of their administrator in law, who was debtor in the very deed, and obliged to implement their mother's contract; which is not like a fraudulent deed done by a tutor in favours of his pupil, to whom he was not debtor. And the decision, Paton contra Paton is not to the purpose, for there the bond was taken by the father from his son without a preceding onerous cause.

Triplied for the pursuers; A tutor who is debtor to his pupil, acquiring to him fraudulently in satisfaction of that debt, puts his pupil in a worse case, than if the tutor were not debtor; because, a tutor who is debtor is under stronger temptation to do so, than one who is disinterested; and a tutor bankrupt cannot by partiality prefer his pupil to other creditors. A tutor who is also debtor to his pupil, duplicem personam gerit, et ego non sum ego; and though he cannot authorise his pupil in rem suam, yet when he qua debtor mala fide dispones to his pupil, perinde est, as if he did mala fide acquire from another for his pupil, which acquisition would be reducible upon the tutor's fraud.

The Lords repelled the defence, that the disposition in favours of the children of the second marriage, was made by the father with the pursuer's consent, for an anterior onerous cause in their mother's contract of marriage; in so far as would extend to the sums provided by the said contract; in respect of the obligement in the pursuer's contract of marriage, to make up the estate disponed to be worth 8,000 merks of yearly rent out of the father's other lands and estate; and therefore sustained the reason of reduction.

Fol. Dic. v. 2. p. 21. Forbes, p. 313.