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Paton of Kinaldy v Dr Urquhart. [1698] 4 Brn 400 (9 February 1698)
URL: http://www.bailii.org/scot/cases/ScotCS/1698/Brn040400-0806.html
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Paton of Kinaldy v. Dr Urquhart
Date: 9 February 1698
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Paton of Kinaldy, having married Dr Urquhart's daughter, in the contract of marriage there is 3000 merks of tocher stipulated. The lady being dead, and leaving a son behind her, Kinaldy charges the Doctor for the tocher. He suspends on thir reasons, That, though it be made payable by the contract after year and day, yet he promised that, quoad 2000 merks of it, his father-in-law should liferent it, and the payment should be suspended during his life; 2do. The charger, Kinaldy, was obliged to infeft the son of the marriage in the lands, which he had done only by a base infeftment, without showing he is infeft himself; and had reserved his own liferent, which was noways provided for by the contract of marriage; 3tio. He craved compensation for the expense of Kinaldie's wife's in-lying of her child, and for her burial.
Answered to the first, Any promise emitted by him was when minor, having curators, and so null; as also, it was expressly contra fidem tabularum nuptialium, and so contra bonos mores, and reprobated by law; as appears, tit. D. et C. de Pact. Dotal, et de Fundo Dotal. And Voet, in his Practical Observations, tells, that clandestina pacta cannot derogate from the faith of public and solemn contracts of marriage; and we have oft decided conform, as on the l6th of July 1672, Duff against Fowler, &c. To the second, An obligement to infeft in fee is contradistinguished from the liferent; and there can be nothing more unreasonable than for a father to divest himself both of the fee and liferent of his lands to his infant son. To the third, It was against his will that they drew away his wife; et qui, invito, negotium gerit, is non repetit impensas.
The Lords repelled the first and second reasons of suspension, in respect of the answers made thereto; and referred to the Ordinary in the cause to try if the father was infeft himself, and to adjust the grounds of compensation and the account of expenses betwixt them; though, in strict law, it was refusable, because a compensation not instantly verified.
