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Scottish Court of Session Decisions >>
Andrew Bullions v James Bayne and John Hepburn. [1793] Mor 6149 (4 December 1793)
URL: http://www.bailii.org/scot/cases/ScotCS/1793/Mor1506149-356.html Cite as:
[1793] Mor 6149
A deed executed by a married woman, which is null for want of her husband's consent, does not become valid on being ratified by him after her death.
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John Guernsey, a soldier, husband of Margaret Bullions, went with his regiment upon foreign service.
After he had been absent about five years, she gave out that he was dead, and married James Bayne, to whom she disponed gratuitously, or at least only under burden of paying the debts affecting them, which were not equal to their value, certain heritable subjects belonging to her.
The subjects were sold by Bayne to John Hepburn.
After the death of Margaret Bullions, John Guernsey returned, and ratified her disposition in favour of Bayne.
In a reduction of this ratification, and of the dispositions in favour of Bayne and Hepburn, Andrew Bullions, the heir at law,
Pleaded; The husband is the curator of his wife, and in that character his consent is essential to all her deeds, even to those by which his interest is not affected; Ersk. b. 1. tit. 6. § 27.; Reg. Maj. b. 1. c. 30.; b. 2. c. 36.; Balf. Pract. p. 95.; Craig, b. 1. d. 12. § 28.; Stair, b. 1. tit. 4. § 15.; Sir George Mackenzie, b. 1. tit. 6. § 11.; Bankt. B. 1. Tit. 4 § 4. Parl. 07.; Dict, voce Husband and wife. The want of it cannot be supplied by a ratification afterwards granted by him; 12th February 1556, Melville, No 195. p. 5993. and No 206. p. 6001.; Matthew against Sibbald, No 163. p. 5959. and No 207. p. 6001.; Fount. 23d February 1698, Lady Cochran against the Dutchess of Hamilton, No 208. p. 6001.; Bankt. b. 4. tit. 45 § 40. And, at all events, such ratification, after his office of curator and his interest in her estate are dissolved by her death, can have no effect
Answered; The consent of a husband to his wife's deeds is not required, from the idea that she, like a pupil, is incapable of acting for herself, but solely on his account; Ersk. b. 1. tit. 6. § 27.; Fount. 17th July 1711, Pringles, No 172. p. 5970.; Cockburn against Burn, No 29. p. 5793. and No 32. p. 5794. Although, therefore, his consent be not adhibited, they are not ipso jure null, but liable to exception at his instance; Ersk. ib. § 23. which the ratification bars the husband in the present case from pleading, all imperfect deeds which create a natural obligation being capable of homologation; Ersk. b. 3. tit. 3. § 47.
Besides, the necessity of the case was sufficient to give validity to the disposition granted by Margaret Bullions; Ersk. b. 1. tit. 6. § 27.; Bankt. b. 1. tit 5. § 4. Par. 67.
The Lord Ordinary reported the case on informations.
Observed on the Bench; A married woman is sub cura mariti, and on that account her deeds are null without his consent. If she survive her husband, she may either ratify them, or bring them under reduction. But the consent of the husband, after his office of curator is at an end, can have no effect; his marital power has then ceased, and a jus quæsitum arisen to her heirs.
The Lords unanimously reduced in terms of the libel.
Lord Ordinary, Henderland.Act. Cullen.Alt. Geo Fergusson.Clerk, Colquhoun.
Fol. Dic. v. 3. p. 288. Fac. Col. No 82. p. 179.
