Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JAMES DALRYMPLE OF STAIR.

Lockhart
v.
Lockharts

Date: 6 July 1677

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The deceased Stephen Lockhart of Wickedshaw, having communed a marriage for his eldest son, did, before the contract of marriage, take a bond from his son, bearing, That, albeit by his son's contract of marriage, he was to dispone to him his whole estate, with the burden of 4600 merks to his children, yet it should be leisom to him to burden the estate with 1400 merks more to his children; and making both sums, bearing annualrent after his death. The contract of marriage is subscribed three days thereafter. William, the son, having shortly deceased after the marriage, Stephen, the father, did divide the 6000 merks among his children, and died in anno 1663. William, son and heir to William, son to Stephen, in anno 1664, counted with Walter Lockhart, one of the children, and with Robert, another of them, in anno 1671, for their shares. William, the oy, having also died, the said Walter and Robert pursued his son and heir for their portions, who alleged, Absolvitor:—1 mo. Because, as to the 1400 merks, and the additional annualrent, it was contra pacta dotalia, and so contra bonos mores, and thereby null; for, if the father had disponed his estate without mention of his children's provision, a bond by the son in their favours, being anterior, might have been effectual; but the contract of marriage bearing expressly a burden to the children of the 4600 merks, any further was not fair, but fraudulent, in prejudice of the wife and her relations, who would not have otherwise proceeded in the marriage. 2do. This bond by a son to his father, being minor, is null; he not being authorised by his father, who was his lawful administrator, and could not authorise in rem suam.

It was answered, That these provisions being expressly to the behoof of the children, granted before the contract of marriage, were valid; for such provisions, contrary to contracts of marriage, can only be null in quantum there is a true prejudice and wrong to the parties-contractors; wherein their interest, not their humour, is to be considered: so that the addition of 1400 merks, (there being many children, and their whole provision being but 6000 merks, bearing annualrent after their father's death,) it was the discharge of a natural duty, and no wrong to the son or wife, who were put in the whole estate. And, as to the nullity, the bonds were homologated by the oy, after his majority, by counting for, and paying the annualrent expressly relative to the bonds; and it is most unfavourable to quarrel the bond or contract, passed near 40 years since, which did draw in question the grandsire's deed.

It was replied, That homologation can only be by express deeds of knowledge; but the oy might have been ignorant of his father's contract.

The Lords found the homologation by an account relative to the bond, and payment of annualrent thereof, for many years, sufficient to exclude any question against the bond; and therefore dived no further into the nullities.

Vol. II, Page 534.