Scottish Court of Session Decisions

Subject_1 HUSBAND and WIFE.
Subject_2 DIVISION V.

A married woman's deeds in what cases effectual against herself, the husband consenting or not consenting.
Subject_3 SECT. IV.

Personal Bond not binding upon a Wife, although her Husband consent.

Greenlaw
v.
Galloway

Date: 24 March 1626
Case No. No 162.

Found in conformity with No 160. supra.

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In a reduction betwixt Greenlaw and Galloway, wherein Greenlaw pursues for reduction of a bond, made by her umquhile husband and her to Kinloch and his spouse, conjunctly and severally, for a sum of money to be paid by them to the said Galloway defender, at the term contained in the bond; and failing thereof, obliging them to pay annualrent therefor out of their lands, as well not infeft as infeft, the wife, after the death of her husband, desiring this bond to be reduced, with the comprising which was deduced thereupon against her lands, pertaining to her in heritage, because it was made by the husband and her stante matrimonio, which could not oblige her to pay after the husband's death, and for which no execution, either personal or real, could follow against her, her proper goods or lands, but only against the husband's goods and lands; and it being excepted, That she was bound conjunctly and severally with her husband, that as the husband might sell her land with her own consent effectually, so he might give an annual out of the same with her consent, and therefore might with her consent burden the land with sums of money, and borrow money, which might affect the land, albeit she might not be personally compelled to pay the same;—likeas the defender declared, that he craved not her to be personally decerned to pay the principal sum, but only restricted the force and execution of his obligation against the tenements pertaining to her for paying off the annualrent of the said principal sum, and not for the principal sum; notwithstanding of the which restriction, the reason was sustained, and the exception repelled, and the obligation and comprising of the wife's land was reduced; and the Lords found that the bond was not obligatory, neither personally against the wife, nor against her own proper goods nor lands, neither for the principal sum, nor for any annuals thereof; for albeit the wife and the husband may annalzie or wadset the wife's lands stante matrimonio, if it be legally done; yet being done after another manner and form than is allowed of the law, as this bond was, which contained no clause to infeft in the wife's land, but was drawn up in a bond to pay the principal sum, and failing, to pay annualrent out of their lands generally, not obliging formally to infeft in this land controverted; therefore the same was not sustained, for the bond controverted was made for payment of borrowed money.

In this process there was an old practick produced betwixt Mr William Naper and Margaret Mowbray, wherein she having consented to grant an infeftment with her husband to a creditor, of an annualrent out of the lands, wherein she was infeft in conjunct-fee, after her husband's decease; she being personally convened for payment thereof, seeing she possessed the said land, conform to her right foresaid of conjunct-fee, the Lords decerned her to make payment of the said annualrent in time coming, so long as she bruiked by her right, albeit she only was consenter to that contract made by her husband, seeing she then had the right of conjunct-fee in her person when she consented, and after the husband's death possessed the land; which the Lords found did not agree with this case now controverted.

Act. Hope. Alt. Aiton & Lawtie. Clerk, Gibson. Fol. Dic. v. 1. p. 398. Durie, p. 198.