Scottish Court of Session Decisions

Subject_1 PROVISION to HEIRS and CHILDREN.
Subject_2 SECT. VII.

Obligation by one in his contract of marriage, to provide certain sums or subjects to the issue of the marriage, how far effectual in competition with creditors?

Alexander Gordon of Ardoch
v.
William Sutherland of Little Torboll

Date: 3 June 1748
Case No. No 63.

A settlement in a contract of marriage is in dubio not understood to give more to the heirs nascituri than spes successionis.

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The contract of marriage betwixt John Sutherland of Little Torboll and his spouse, begins with an obligation upon him, “duly and sufficiently to infeft and seise Anne Ross, his promised spouse, in liferent, and the heirs-male lawfully to be procreated betwixt them in fee, in all and hail the town and lands of Little Torboll, &c. and for that end, to grant to them sufficient charters, containing precepts of sasine, &c. and which infeftments, lands, and others, the said John Sutherland binds and obliges him, and his foresaids, to warrant to be good and sufficient, free, safe, and sure, to the said Anne Ross, and said heirs-male, for her liferent of the sum of L. 360 Scots, as the annualrent of the principal sum of 9000 merks, in case she be the longest liver; and for the said heirs-male their right of fee, from all and sundry prior infeftments, inhibitions, adjudications, liferents, annualrents, cesses, taxations, and other public burdens whatever, at all hands, and against all deadly.” Follows an assignation to the mails and duties in favour of the wife and the heirs-male, for their respective rights of liferent and fee, to take effect after the said John Sutherland's death; and to this is subjoined an assignation to the writs and evidents, and an obligation to make the same furthcoming to them, as accords; “which assignations respective, the said John Sutherland binds and obliges him and his foresaids to warrant to the said Anne Ross and heirs-male, from his own proper facts and deeds, done or to be done in prejudice hereof.”

This contract bears date in the 1714, and in the year 1717, an inhibition was served upon it for behalf of William Sutherland, eldest son and heir of the marriage. In the year 1725, John Sutherland the father borrowed from Alexander Gordon of Ardoch 5500 merks, and granted him a real security upon the lands of Little Torboll. The creditor having adjudged, brought a process of sale after his debtor's death; in which compearance was made for the said William Sutherland the heir-male, who insisted, That, by the inhibition, the pursuer was interpelled from lending money to John Sutherland of Little Torboll, in prejudice of the obligation he was under to settle the fee upon the heir-male of the marriage; and, therefore, that he could not bring the estate to a sale in prejudice of him the heir-male. The pursuer urged several passages from Stair and Mackenzie to prove, that an inhibition upon a contract of marriage is no bar to the contracting onerous debts. In answer to which, and in support of the objection, the Counsel for the heir-male reasoned as follows:

It was premised that the pursuer's arguments are founded upon a mistake, as if provisions in favour of heirs of a marriage contained in marriage-articles, were all of the same import; whereas, contracts of marriage may be as different in their tenor as any contracts or deeds whatever; and, therefore, to judge of the effect of an inhibition served upon a contract of marriage, the special clauses of the contract must be attended to. More particularly, where a man in his contract of marriage settles, or becomes bound to settle, his estate in favour of the heir-male, or of the heir of the marriage, such settlement or obligation to settle, though it imply more than a simple destination, has no further effect than to imply a prohibition upon the father to alter the order of succession; therefore, he performs his obligation by leaving his estate to descend to that heir tantum et tale as it is at his death. Contracting of debt, or even selling part or whole of the estate, is no infringement of such obligation. Rational deeds are no infringement, such as granting provisions to younger children, or making a settlement in a second contract of marriage. Nay, gratuitous deeds are no infringement, if they be not done eo intuitu to disappoint the heir of his hope of succession, in which case they are fraudulent deeds. This is the sense of the pursuer's quotations from Stair and Mackenzie. And as it is agreed on all hands, that clauses so conceived have no other meaning, than to bar the husband from altering the order of succession, and by no means to debar him from contracting debt, or doing any reasonable act of administration, inhibition upon such a contract would be a vain diligence; for inhibition cannot alter the nature of an obligation, nor bind a man further than he is bound by the deed upon which it is founded. Therefore, in the case observed by Durie, 18th January 1622, Laird of Silvertonhill contra his Father, No 1. p. 9451. inhibition was justly refused upon a contract, where the father was no further bound than to settle his estate upon the heir of the marriage. And inhibition was also justly refused in a similar case observed by Dirleton, 7th January 1675, Innes contra Innes, No 22. p. 12858. where a sum of money was provided to the husband and wife, and the heirs-male of the marriage; and the like, 24th January 1677, Graham contra Rome, No 58. p. 12909.

But now, if a marriage settlement be so conceived as to oblige the husband to denude of his estate in favour of the heir of the marriage, upon his existence, or at a certain age; or be so conceived as to bar the husband from alienating the estate, or contracting debt in prejudice of the heir of the marriage; none of our authors make a doubt that inhibition upon such a contract will secure performance of the obligation, and be an effectual bar against contracting debt. Thus, inhibition being raised upon a contract of marriage, where the husband became bound “to infeft himself in certain lands betwixt and a precise day, about a year after the marriage; and immediately thereafter, to resign for new infeftment to his future spouse in liferent, and to the heirs of the marriage in fee;” reduction by the inhibiter was sustained of an onerous disposition granted after the inhibition, because the clause inferred a prohibition upon the husband to grant any voluntary right in prejudice of the provision; 22d July 1724, Douglas contra Douglas and Drummond, No 60. p. 12910. And in a contract of marriage, in which the husband “became bound to join the sum of 3000 merks, with 17,000 merks of portion received with his spouse, and to lay out the same upon good security to himself and spouse, and longest liver in conjunct-fee and liferent, and to the children of the marriage in fee; and how often the sum should be uplifted, that he should so often re-employ the same in the above terms;” the man having died bankrupt, action was brought against the cautioner, who was bound with him in the contract: His defence was, that the obligation barred only gratuitous deeds, and was no impediment to the husband from laying out the money upon trade, though it should be sunk thereby: But the Court found the import of the obligation to be, that, in all events, this sum should be secured to the children of the marriage; and, therefore, sustained action against the cautioner for replacing the sum. It is true, there was no inhibition upon this contract, and so the present case came not to be determined in point. But the ratio decidendi is the same; for from this clause was inferred a prohibition to contract debt in prejudice of the children of the marriage; upon which, if inhibition had been served, a reduction upon that head must have been competent even against onerous creditors, upon the precise same footing that an action was sustained against the cautioner.—See Appendix.

And here in general it must be observed, that as in many instances the Court has sustained actions against the husband or against the cautioner, for replacing sums or subjects evicted by onerous creditors, these are all of them so many authorities to the present point. A man who in his contract of marriage reserves to himself a power of contracting debt, and of doing other rational acts of administration, cannot be bound to replace the subject or sum when it is evicted by onerous creditors; because such is the condition of the settlement made upon the heirs of the marriage. As little can his heirs or cautioners be liable; and, upon the same foundation, inhibition upon such a contract would be a fruitless diligence. But if it be either expressed or implied in the contract, that the subject is to be made effectual to the heirs of the marriage whole and entire, the husband must be liable; if the subject be evicted, his cautioner must be liable; and an inhibition upon the contract will be effectual to bar creditors.

Nor is this a new or singular doctrine; what is above laid down coincides with a practice well known in the Court of Session concerning tailzies. Before irritant and resolutive clauses were invented, inhibition was the only method commonly practised, provided an entail either bore or implied a clause de non alienando, et non contrahendo debitum. An inhibition upon such negative obligation was ever held sufficient to bar even onerous deeds; vide Hope's Minor Practiques, voce Tailzies. In the present case, there is more than an implied prohibition to contract debt in prejudice of the entail or settlement in the contract of marriage; there is an express prohibition, the heir of the marriage being warranted against all debts and deeds of his father.

“Found, That the fee, by the contract of marriage, remained with the father, and that only the spes successionis was vested in his son; and, therefore, that the inhibition does not strike against the father's onerous contractions.”

In advising this case, the principles above laid down were not controverted. But the interlocutor was founded upon this opinion, that the contract under consideration, which indeed has been the work of an ignorant writer, did not import more than a hope of succession, and was not meant to bar the father's power of contracting debt, nor of alienating for onerous causes.

This judgment was affirmed in the House of Lords, 7th March 1751.

Fol. Dic. v. 4. p. 187. Rem. Dec. v. 2. No 91. p. 151.

*** D. Falconer and Kilkerran's reports of this case are No 54. p. 4398. voce Fiar Absolute, Limited.