Scottish Court of Session Decisions

Subject_1 HUSBAND and WIFE.
Subject_2 DIVISION II.

Extent of the Husband's liability for the Wife's debts contracted before Marriage.
Subject_3 SECT. I.

Personal debts. - Annualrent of heritable debts. - Liable for heritable debts in qnantum lucratus.

Lockhart of Carnwath
v.
Euphan Dundas, and Mr John Dundas of Philpstoun, Advocate, Her Husband

Date: 22 January 1714
Case No. No 67.

The husband found not lucratus by getting a competent tocher, which he recompensed by suitable provisions to the wife and children of the marriage

Click here to view a pdf copy of this documet : PDF Copy

George Lockhart of Carnwath, in January 1693, obtained a decreet against Catharine Swinton, daughter and heir to George Swinton of Chesters, and David Dundas of Philpstoun, her husband, for his interest, for payment of L. 1,000 principal, annualrent, and penalty, contained in a bond granted in anno 1680, by the Lord Mersington as principal, and the said George Swinton his brother as cautioner, to Sir George Lockhart President of the Session, the pursuer's father. The lands of Chester, then affected with a liferent annuity of 600 merks in favours of Euphan Brown, Catharine Swinton's mother, being sold to a third party for 12,000 merks, there was a contract of marriage perfected 20th December 1693, betwixt the said David Dundas and Catharine Swinton, whereby the husband got the 12,000 merks, the land's price, in name of tocher, to be applied for payment of his debts; in recompence whereof, he secured his wife in a liferent annuity of eight chalders of victual out of his own estate of Philpstoun, and Euphan Brown, his mother-in law, in another annuity of 600 merks in lieu of the equivalent renounced by her out the land of Chester, and disponed his estate with these burdens to the heirs male of the marriage, and provided the daughters to L. 1,000 Sterling, which contract expressly referred to marriage articles formerly commenced upon. No diligence been done upon the decreet against David Dundas, as husband to Catharine Swinton, stante matrimonio. Carnwath pursued Euphan Dundas his heir, and Mr John Dundas her husband, for payment of the sums decerned upon these grounds, 1mo, That David Dundas was lucratus by the marriage with Catharine Swinton; 2do, Seeing Catharine, as heir to her father, was liable before the marriage for the debt claimed by the pursuer, she could not stante mantrimonio dispone, or her husband, a conjunct person, accept of a right to the price of her lands in prejudice of an anterior lawful creditor. Then the pursuer repeted a reduction of the said fraudulent deed upon the act 18. Parl. 1621.

The Lords found, 1mo, That David Dundas was not lucratus by his marriage with Catharine Swinton; 2do, They repelled the reason of reduction upon the act of Parliament 1621, notwithstanding that the decreet against Catharine Swinton and David Dundas her husband, for his interest, was before the sale of the lands of Chester and the date of the contract of marriage.

Fol. Dic. v. 1. p. 390. Forbes, MS. p. 16.