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Scottish Court of Session Decisions >>
M'Keinzie of Suddy v Rosse of Kilraick. [1677] 3 Brn 166 (17 July 1677)
URL: http://www.bailii.org/scot/cases/ScotCS/1677/Brn030166-0199.html
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION.
M'Keinzie of Suddy v. Rosse of Kilraick
Date: 17 July 1677
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A wife called Margaret Andersone, being liferentrix of lands, does, with consent of her husband, assign and dispone her liferent right in favours of another person; he transfers it to a third, and a third to a fourth. This fourth grants a backbond to the husband, declaring, that for onerous causes, the right of the liferent is the husband's.
This was quarrelled, as donatio inter virum et uxorem, in construction and interpretation of law, though done per interpositam personam, and so, as revocable ta-cite vel expresse, since quod non licet directo, nec per obliquos licebit cuniculos.
Answered,—It had gone through many hands, and past to singular successors. 2do, Its returning to the husband made it not a donatio; because ab initio, (which is ever to be attended,) it was not a donation flowing from the wife to the husband, stante matrimonio, but was come in his person, for some new onerous cause.
The Lords found the conveyance was to be presumed to have been merely done animofraudandi legem; and wherever appears a design fraudem legi facere, ejusque mentem circumvenire, there it annuls the deed; and found it was vitium reale that followed and affected it per mille manus; and so declared it to be a donation and revocable.
They had decided the same thing formerly in Wolmet's case, in 1663. See Alexander Arbuthnet's information contra Colonel Hary Barclay; see Lutfuit and Corser's information. Vide supra, June 26, 1678, [Birnies against Morray.] No. 580. See Schotani Eocamen Juridicum, ad Tit. de Donationibus inter virum et uxorem. See the same decided in Dury, December 21,1638, Craigmillar contra Chalmers. See Craig, pag. 97 and 341.
