Scottish Court of Session Decisions

Subject_1 BONA ET MALA FIDES.
Subject_2 SECT. II.

Private Knowledge of a Prior Right.

Wemyss
v.
Lord Torphichen

Date: 25 July 1661
Case No. No 7.

An heiress of entail made up titles, neglecting the entail. She disponed the subject, which was a wadset, to her husband. He uplifted the wadset sum; but was obliged to re, fund to the substitutes, although a singular, successor would not. He knew of the entail.

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Lady Mary, Jean, Elizabeth, and Katharine Wemyss, pursue the Lord Torphichen, alleging that their deceased sister, Dam Anne Wemyss, having a wadset of 20,000 merks upon the barony of Errol, granted a bond of provision thereof to her daughter Jean Lindsay, thereafter Lady Torphichen, and to the heirs of her body; which failing, to return to the said pursuers, with an obligement, that her said daughter should do nothing to prejudge the said heirs of tailzie; which bond was delivered by the Earl of Wemyss to the defender, then husband to the said Jean Lindsay, who obliged himself to make the same furthcoming to all parties having interest, as accords. Yet thereafter, during the marriage, the said Jean Lindsay entered heir to her mother; and she and the defender uplifted the wadset sum, passing by the bond of provision; which sum being in place of the wadset, and unwarrantably uplifted by the defender, contrary the bond of provision, known to himself, which he was obliged to make furthcoming; he ought to re-fund the same—The defender answered, That the libel is noways relevant; for if his deceased Lady, Jean Lindsay, being fiar of the wadset, did uplift the same, and contraveened the bond of provision, nihil act eum, who is but a, singular successor, having right from his Lady, by contract of marriage, whereof there was a minute at the time of his marriage, expressly disponing this sum, without any mention or knowledge of the bond of provision; and albeit he knew the same after his right, nihil est. And as for his ticket, it can work nothing; for though the bond of provision were now produced, it being but a personal obligement, can oblige none but his Lady's curators or successors; and if they will allege that he is either heir or successor relevant, and his ticket to make it furthcoming as accords, nihil novi juris tribuit.—The pursuer replied, That albeit a singular successor, for an onerous cause, might have uplifted the wadset, and been free, yet the defender being as the same person with his Lady, and having no onerous cause but his contract of marriage, wherein there was a plentiful tocher of L. 20,000 provided to him besides this, and having known the bond of provision, before the uplifting of the sum; and so, particeps fraudis, he is liable to make the sums received by him furthcoming by the act of Parliament 1621; and also by the common law, in quantum est lucratus alterius dispendio.

The Lords found the libel and reply relevant and approven; and therefore decerned Torphichen to re-fund the sum.

Fol. Dic. v. 1. p. 105. Stair, v. 1. p. 56.