Scottish Court of Session Decisions

Subject_1 BONA FIDE CONSUMPTION.
Subject_2 SECT. III.

Private Knowledge of a Preferable Right.

Children of Wolmet
v.
Douglas and Cuningham

Date: 20 November 1662
Case No. No 12.

A donation by a husband to a wife being revoked by posterior donation to the children; in accounting for the interim profits, the wife was considered as a mala fide possessor, because she knew of the right of her children. The relation of the parties was here deemed an important circumstance.

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In a pursuit at the instance of the Children of Wolmet, for the profit of the coal of Wolmet, intromitted with by Jean Douglas Lady Wolmet in her viduity, by virtue of a tack of the coal granted by umquhil Wolmet to his children for their portions: It was alleged for the defender, 1st, absolvitor, because the said Jean had right to the said profit of the said coal, ever since her husband's death, by virtue of the wadset of the lands and coals of Wolmet, granted by umquhile Patrick Edmonstoun of Wolmet, to James Loch, wherein there is a back-tack of the land and coal set to the said umquhile Wolmet, and the said Jean his spouse, for the annualrent of the money. It was replied for the pursuers, that the foresaid back-tack was taken by Wolmet stante matrimonio, and so was donatio inter virum & uxorem null in itself, nisi morte confirmetur, and was confirmed by Wolmet's death, but revoked by Wolmet's tack granted to his children after the Said back-tack. It was answered for the defender, That the reply ought to be repelled, because the back-tack was no donation, but a permutation, in so far as the lady, by her contract of marriage, was infeft in the half of the lands of Wolmet; which infeftment she renounced in favours of James Loch, at the taking of the wadset, and in lieu thereof, she got this back-tack, which therefore can be no donation, which must be gratuitous without a cause onerous. It was replied by the pursuers, That the duply is not relevant; for albeit it be not a pure donation, yet quoad excessum the superplus of the benefit of the back-tack, above the benefit of the contract of marriage, is gratitude, and a donation; and the reason of the law against donations betwixt man and wife being ne mutuo amore se spolient, it holds in it, and it would be easy to elude the intent of that good law, if donations contrived under the way of permutation without any real equality were allowable. It was answered for the defender, that the duply stands relevant, and the superplus of a permutation cannot be called a donation more than the benefit of an advantageous vendition: it is true, that if the donation of the back-tack had been ex intervallo, after the ladies renunciation, it would (not) have been unicus contractus, but two distinct donations; or if the matter exchanged had been aliquid ejusdem speciei, as an annualrent of 500 merks, with an annualrent of 1000 lib. the superplus would have been a donation; or if the lady had received a notable excess above the half, yea, above the third, of what she quitted, it might have been revocable by her husband, she being reponed to her first condition, by her contract of marriage, but here there is no such exorbitant excess, she having quitted a certain land rent for the profit of a coal, which is most uncertain, for the haill land rent would not pay the back-tack; and it is now wadset; and likewise: she is personally liable for the back-tack duty.

The Lords repelled the defense and duply, in respect of the reply and triply; and found the excess so considerable in this case, that it was as a donation, and was revoked by the childrens tack; but found, that before the defender made payment of what should be found due by this account, she should be reponed and put in statu quo prius, by her contract of marriage.

It was further alleged for the defender, absolvitor, because that albeit her right to the back-tack were revoked by the children's tack, yet she is bona fide possessor, et fecit fructus consumptos sues, according to the law of this kingdom, and of most of other nations necessarily introduced, for the good and quiet of the people; because, as to and profits, they spend as they have, and therefore what they spend bona fide by a colourable title, they are secured in that, albeit their title be taken away; yet they shall not be called in question for what they have enjoyed bona fide before sentence or citation.—It was answered for the pursuers, That the defence was not relevant in that case, where the question is not of industrial fruit, but of natural fruit, such as coal, 2 do, It is not relevant, unless it were cum titulo, not ipso jure null; but here the defenders title being a donation betwixt man and wife, is by the civil law, which herein we follow, null in se nisi morte confirmetur. 3tio, There must be bona fides which is not here; because it is instructed by a minute of a contract, produced within five months before the childrens tack, that the Lady consented to the providing of the children by the profit of the coal; and she cannot be presumed ignorant of so domestic an affair in favour of her own children done by her husband; and she hath given up an article in her account of the expence of registering the childrens' tack, by herself; and so she must be presumed to have possessed as pro-tutrix for her children, and not to defraud or exclude them.—It was answered for the defender, That the defence stands yet relevant, and the law makes no difference betwixt industrial and natural fruits; he who possesses sands bona fide is no more accountable for the grass that grows of itself, nor for the corn that he labours for. 4to, And coal is an industrial fruit, having as much pains and expence as corns and other industrial fruit, and more uncertainty: As to the title, albeit it be invalid, yet sufficit coloratus vel putativus titulus; and albeit in the antient Roman law such donations were null, in se nisi confirmentur morte, yet by the subsequent course of law, per orationem Antonii, they are declared valid themselves; unless they be revoked, and therefore are not null, but annullantur medio facto; and there are many nullities which may consist with a colourable title, ad hunc effectum lucrari fructus consumptos; as if the nullity be not ex defectu substantialium, but by defect of some solemnity, as the not registration of a sasine will not make it so null, but that the possessor bona fide thereby may employ the fruits; but if it want tradition of the symbol, it will be null in se; but here such donations have all their essentials, but they are only annullable by a subsequent fact; and as to the evidence, that the Lady was in mala fide, they are noways sufficient; by her consent, that the children should be provided with the coal, was in contemplation of her eldest son's marriage, which took effect; and the rest are mere presumptions; and dato, she had known privata notitia non nocet, unless there had been some intimation, citation, or judicial act, to put her in mala fide; and especially private knowledge infers not mala fides, unless it had been anterior to her possession.—The pursuer answered to the last point, That albeit private knowledge in some cases would not infer mala fides among strangers, yet a mother, knowing the right of her own children, whereof one were in her womb, it puts her in mala fide, seeing she was thereby obliged to have sought tutors, and preserved their right.

The Lords found the evidences sufficient to prove the defender to have been in mala fide, and therefore repelled this defence also, and ordained the defender to compt for the intromissions; but found that the charge ought not to be stated according as the profit of the coal sell out to be, but as the profit thereof might be communibus annis, in regard she quitted her certain liferent of the lands for an uncertain coal; and therefore abated a fourth part of what the free profit of the coal was found to be by the last account. See Husband and Wife.

Fol. Dic. v. 1. p. 109. Stair, v. 1. p. 141.