Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Subject_2 I sat in the Outer-House this week.

Patrick Bell
v.
Hugh Muir

Date: 28 July 1710

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Bell and Muir. James Lawson, merchant in Glasgow, in 1665, dispones six acres of land to his two daughters and the heirs of their body; and, for a considerable sum of money undertaken for him by Mr Patrick Bell, he, failing of his two daughters and their heirs, dispones the acres to the said Mr Patrick his heirs and assignees. He reserves his own liferent, and, in case of necessity, or being reduced to poverty, a power to dispose on a part of the acres for his own relief. On the procuratory both the daughters and Mr Patrick are infeft nominatim. Margaret, one of the daughters, being married to Mr Hugh Muir, she, in her contract of marriage, in anno 1681, dispones these acres to her husband nomine clods, but in the subsequent clauses it seems to be restricted to a liferent in his person. For clearing up this dubiety, there is a new disposition given by her stante matrimonio, conveying the fee of these acres to her husband. The said Margaret deceasing without children, Mr Bell, as the next substitute, and standing infeft, pursues maills and duties against the tenants and possessors of the acres. Wherein compearance is made for Hugh Muir, a son of the said Mr Hugh's by another wife; and founds on his father's right, that Margaret being undoubted fiar, she had disponed the same to his father in her contract of marriage; and causa clotis estfavorabilis, et in dubio pro dote est respondendum; and a tocher given ad sustinenda onera matrimonii can never be called gratuitous; And if any scruple arose from the unclear conception of the contract, the mist was fully dispelled by the second disposition fully transmitting the fee; et in Claris non locus conjecturis; and his taking a simultaneous seasine with the institutes was most unwarrantable, he having no right till the failyie existed; as was decided, 14th January 1663, Beg against Nicolson. And here no other could be fiar but either his father or the heirs of the marriage; but it were absurd to suppose the fee pendent, and hanging in the clouds, aye till an heir of the marriage should exist, which is both contrary to the principles of law and the current of our decisions; 12th December 1665, Pearson against Martin; and 23d January 1668, Justice against Stirling. So she being absolute and illimited fiar, and under no prohibitory clause, what hindered her to do a rational deed in favours of her husband, failing children of her body; and to prefer her husband in that case to an extraneous substitute? as was found by that famous decision, 1st and 21st December 1680, Anderson against Bruce. And esto Mr Bell's substitution were onerous, yet that lays no restraint on the fiar, to impede them from rational deeds; and was so found in a mutual tailyie, 14th Junuary 1631, Sharp against Sharp; and President Newton, February 1683, Bonnar against Arnol, tells, the Lords found a substitution of 30,000 merks evacuated by a legacy of a person that was minor.

Answered for Bell,—Whatever may be pled in gratuitous substitutions, only made for love and favour, he is nowise in that case; for this was his purchase, and he had bought it with his money: it was a real emption and vendition, which must not claudicate and stand singly on the will and arbitrament of the seller. Bona fides contractuum will not allow such an inequality, nor permit the first institute to evacuate and elude it, except for most necessary and onerous causes. Muir's contract of marriage is as clear as the sun can make it, and gives him no more but a pure liferent. The subsequent disposition is donatio inter virum et uxorem stante matrimonio, and so could never prejudge the onerous substitute, and irrefragably demonstrates no more to have been intended by the contract but a liferent, else what needed the second disposition? And by sundry decisions the Lords have found, that voluntary and unnecessary deeds of institutes cannot evacuate onerous substitutions; as 31st January 1679, Drummond; and 10th February 1685, The Executors of Mortimer against The College of Edinburgh, in President Falconer's collection; and more lately, 15th January 1697, and l8th November 1697, YorJeston against Burn and Shiels; where the Lords annulled a minor's testament, because it crossed her father's substitution, and found she could not prejudge it.

The Lords, in this case of Bell and Muir, found, by plurality of votes, the daughter's disposition could not prejudge the onerous substitute; and so preferred Bell to the acres.

Vol. II. Page 594.