Scottish Court of Session Decisions

Subject_1 MUTUAL CONTRACT.
Subject_2 SECT. II.

Contract performable at different periods. - Effect of non-performance, and of over-performance. - If the one party repudiate, is the other free? - Whether irritancy implied by failing to perform at the day. - Effect of improper performance. - Contract for mariners wages. - Contract between master and servant. - Contract of affreightment. - Contract not signed by all parties. - Obligation ad factum præstandum.

Marion Selkrig
v.
John Selkrig her Son, and the Creditors of her Defunct Husband

1721. December.
Case No. No 28.

If, in consequence of a mutual obligation, a person dispone with a procuratory and precept, process is competent to stop infeftment and obtain back the disposition, when the other party becomes insolvent without power to implement.

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

William Selkrig, in his contract of marriage with Marion Selkrig, obliges himself in contemplation of the future marriage, to provide the sum of 20,000 merks, and take the security thereof to himself and his future spouse in liferent, and the children of the marriage in fee; on the other part, Marion Selkrig, in name of tocher-good, assigns and dispones to her future husband, a bond of provision, together with some houses in Glasgow, absolutely and irredeemably; and the disposition in the contract of marriage contains procuratory of resignation and precept of sasine, but which was never executed, nor infeftment taken by the husband. The husband afterwards dying insolvent, and never having implemented his part of the contract, Marion Selkrig, the relict, insisted in a declarator against John Selkrig her son, and her husband's creditors, “That her disposition contained in the contract of marriage cannot be effectual to her husband's heir or creditors, unless the mutual cause, viz. her liferent provision be made good to her.”

It was objected by the Creditors and Heir; Were they insisting against the relict for performance, the defence would be good, that she was not bound, unless the prestations on the other side were also performed; for such is the condition of mutual obligements: But the creditors have no claim against the relict, she has already made an ample conveyance to her husband by procuratories and precepts; and having taken herself to her personal action against her husband, she stands upon the same footing with any other of his onerous creditors, and can plead preference only, if she is prior in diligence.

Answered for the pursuer; The transaction stands still upon the footing of mutual obligements; the subject of the disposition, is still in her person; she remains proprietor; her husband never having done any thing upon his disposition, to complete the conveyance; and, as he never was invested, she never was divested. All, therefore, the pursuer craves, is to retain her own subject till she be secured in her liferent, which was the mutual cause.

“The Lords found, That the disposition cannot be effectual to the heir or creditors, unless the pursuer's liferent be made good to her.”

*** The like was found betwixt Martin and Lothian, July 1724, where a wife having assigned to her husband in the contract of marriage, the sum of 4000 merks in name of tocher; the Lords, in regard the prestations on the husband's part were the mutual cause of the pursuer's assigning to him her portion, and that the husband, by reason of his insolvency, was incapable to fulfil these prestations; therefore found and declared, that the wife had a preference to all her husband's creditors, in so far as concerned such part of her portion as remained unuplifted, for her security.

Fol. Dic. v. 1. p. 597. Rem. Dec. v. 1. No 29. p. 61.