Scottish Court of Session Decisions

Subject_1 HUSBAND and WIFE.
Subject_2 DIVISION V.

A married woman's deeds in what cases effectual against herself, the husband consenting or not consenting.
Subject_3 SECT. VII.

Obligations by Wives relative to their own Property.

Janet Ker
v.
Shearers

Date: 14 June 1715
Case No. No 194.

Adjudication upon a personal obligation, granted by a woman vestita viro, null.

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James Hodge, and Janet Ker his spouse, grant an heritable bond to Andrew Shearers, whereupon infeftment followed, in a tenement of the husband's provided to the wife in liferent; whereupon Shearers the creditor having led an adjudication, his daughters, as having right from him, pursue mails and duties.

Janet Ker the wife compeared, and craved to be preferred by virtue of her liferent, her husband being dead; and alleged, That though she concurred with her husband in granting the bond, and that thereby she has prejudged herself so far, that the real right of annualrent is a burden upon her liferent-tenement; yet she is preferable for the superplus mails and duties; because the adjudication was led upon the personal obligement in the bond, which is null as to the wife.

It was answered; That the bond being an heritable bond, bearing a clause for infefting in an annualrent in the tenement liferented, the wife's concurring and consenting to that bond was effectual to all that might follow upon it, and as much as if she had in concurrence with her husband disponed the tenement. It is granted indeed, that the wife's obligement is ineffectual as to all personal diligence, but is valid as to real diligence; and an adjudication is as good as a disposition, against which a wife could not be restored.

It was replied; A wife's obligation is null, not only as to personal execution, but as to all effects, and cannot be the warrant of any diligence, real or personal, even although it were judicially ratified upon oath, 8th November 1677, Sinclair against Richardson, No 185. p. 5985. Likewise a comprising upon a wife's bond was found null, Greenlaw against Galloway, No 162. p. 5957.

‘The Lords found the obligation (adjudication) upon the personal obligement null as to the wife's liferent, and preferred her with the burden of the annualrent bygone and in time coming.’

Fol. Dic. v. 1. p. 400. Dalrymple, No 144. p. 198. *** Bruce reports the same case:

James Hodge, with consent of the said Janet Ker his spouse, grants an heritable bond to the said Shearers, whereupon they were infeft in some lands in Edinburgh; part of the sum being paid, they thereafter adjudge for a balance.

And in a process of mails and duties, compearance is made for Janet Ker and George Fleming her second husband, who also deceasing during the dependence, the parsuers applied, after his death, to the Ordinary for a hearing, and then craved that the tenants might be decerned in the mails and duties, due at the term subsequent to Fleming's decease. And here again compearance being made for the relict, and her infeftment produced,

It was answered for her, 1mo, That she ought to be preferred to the mails and duties, with the burden of the current annualrent of the balance due to the pursuers, because the personal obligement upon which the adjudication proceeded is null ipso jure, and therefore (as to her) the adjudication itself; so that the pursuers could only recur to their infeftment of annualrent to which she had consented, which afforded only a poinding of the ground for the annualrent of the above balance. 2do, She only consented to the annualrent to be uplifted out of her liferented tenement; but not that it should be carried away for the principal sum and whole bygone annualrents.

Replied for the pursuers, 1mo, that they pretend not to do diligence upon the wife's personal obligement in the bond, but to prosecute the real right given them by both husband and wife; and though the personal obligement be null, yet that cannot stop this real execution, to which she consented. 2do, An heritable band in its ordinary stile, and the infeftment of annualrent in the legal effect thereof bears an assignation to the mails and duties of the tenement; so that the liferenter cannot stop the pursuers getting payment of all their bygone annualrents; as to which, this action for mails and duties has the same effect with a process for poinding of the ground. And the Lords have found, that an annualrenter, who is an adjudger, may use the one or other action at his pleasure, and that they will have one and the same privilege and effect; for the pursuer's adjudication is not founded only upon the personal obligement in the bond, but proceeds upon the whole obligements, and obtains preference according to the date of the real right; because the tenement itself is subjected to the payment of the whole sums contained in the heritable bond; and the liferentrix giving consent to it, imports an acquiescence to all that may follow upon it.

The Lords found, That there can be no mails and duties upon the adjudication founded on the personal obligement in the bond granted by the wife stante matrimonio; but found that the heritable bond is a good title for poinding the ground for the bygone annualrents, and in time coming.

Act. Spotiswood. Alt. Fleming. Clerk, Roberton. Bruce, v. 1. No 96. p. 118.