Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JAMES FERGUSON OF KILKERRAN.

Sir Roderick M'Kenzie
v.
Christian Monro

Date: 17 July 1738

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This case is reported in Fol. Dict. 1—70, (Mor. 958.) where the facts are stated. Lord Kilkerran's note of the decision is as follows.

“The Lords were of opinion, that where a wife was provided to an annuity, &c. by her contract of marriage, the husband thereafter granting her an infeftment on a subject, though bearing love and favour, and no way referring to the implement of her contract, but, as here, expressing that it was over and above, or besides it, that the husband could not revoke it, and consequently his creditors not reduce it, it was used by her as a security for the provision in her contract of marriage, in other words, that she might retain it for security of the provisions in her contract, and on that ground found it as above, not reducible.

To this only one of the Lords moved an objection in the reasoning. Should a personal creditor in a ranking, who had, subsequent to his personal debt, obtained an heritable right, for love and favour, insist upon such heritable right in security of his personal debt, he could not be heard ; and the case was similar. But the answer was, that the cases were very different, for that in all provisions in contracts of marriage, there was, if not expressed, which was usual, there was implied an obligation upon the husband to secure such provision to the wife ; wherefore, every security thereafter granted, however the husband should think fit to express it, might, by the wife, be applied to the security of the provision in her contract of marriage.

The Lords pronounced a new interlocutor (for the ground on which it was laid by the Ordinary was not to the case), and found the wife's infeftment not reducible.”