Scottish Court of Session Decisions

Subject_1 PROCESS.
Subject_2 SECT. XIX.

Reduction of Decrees.

Murray
v.
-

Date: 28 July 1709
Case No. No 350.

Decree informal, but materially just.

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James Short, son to the Provost of Stirling, marries Anna Murray, daughter to Polemais; and stante matrimonio in 1672, dispones to her the liferent of a great lodging in Stirling, and of 22 acres adjacent to that town; and, failing of bairns of the marriage, dispones the property and fee of 10,000 merks, heritably secured by infeftment on the estate of Tullibarden. In 1674, he, by a new right, dispones the said sum of 10,000 merks to Mary Scot his mother, and expressly revokes the former disposition he had made of it to his wife, in so far as concerned the fee, reserving her liferent of the same. Mary Scot dispones the said 10,000 merks to my Lord Saline's daughters, her own grand-children, whereon they pursue a reduction of James Short's disposition to Anna Murray, his wife, against Polemais, to whom she had assigned it, on this ground, that it was a donation inter virum et uxorem, in so far as it exceeded a competent liferent, and absorbed the fee, and so was revocable, and de facto revoked by the posterior disposition made in favours of his mother; and the Lords, in 1678, did accordingly reduce it. Alexander and William Murrays having right by progress to Anna Murray their cousin's disposition, do raise a reduction of that decreet reductive, and founded on sundry nullities, such as, that the grand decerniture had no warrant by particular interlocutors after the because; the first being only the words of the clerk in stile, and the last are the words of the judge, which are collected by the extractors, and put all together in the great interlocutor; likeas, no avisandum was made with the probation. Answered, They opponed the decreet, which was res judicata, and could not after 30 years silence be now called in question. Likeas, these things being really done, it is no matter whether they be inserted in the decreet, if they appear from the minutes. The Lords thought it an useless and unnecessary work to loose and open a decreet, where there was nothing, in material justice, to say against it, when it is turned into a libel; and therefore, without opning it, they allowed the pursuers to object what they relevantly could against the said revocation. In which debate, the Murrays alleged, That it was no donation, for there being no contract of marriage, this provision came in place thereof; neither was it exorbitant, seeing it was both affected with debt and her mother's liferent; and she being a gentlewoman of a good family, and he a burgess, it was but a competent provision failing of bairns, which case happened. Likeas, the revocation was on death-bed, and so tempore inhabile, and was not in favours of his nearest heir, but of his mother, and to the heir's prejudice, when he could not wrong him. Answered, All this was fully tried and examined by the Lords in 1678, and very deliberately then reduced; for she having married without her father's consent, he got not one farthing of tocher with her, and the liferent of the house and acres, joined with the liferent of the said 10,000 merks was more than a competent provision; far less should he have given her the fee of the said sum, which was excessus notabilis, and was so found by the Lords, 27th June 1677, and 22d June 1678, Birnies contra Murrays, No 341. p. 6124. and No 58. p. 3242. where all now alleged is there founded on and repelled. The Lords, by plurality, thought it incongruous to loose a decreet in foro on nullities, where the allegeances against it (esto it were open) are irrelevant; and, therefore, finding it was bene judicatum in 1678, and what is now said, shewed no material injustice then committed, therefore, they sustained the decreet, and assoilzied from Murray's reduction. In this case, conveyances of fees to wives by husbands were thought unfavourable, and instances remembered of the Duke of Lauderdale and the Lord Whtelaw.

Fol. Dic. v. 2. p. 206. Fountainhall, v. 2. p. 520.