Scottish Court of Session Decisions

Subject_1 FRAUD.
Subject_2 SECT. I.

Fraudulent Concealment.

Jean Lisk, and her Curator ad litem,
v.
Her Husband and his Creditors

Date: 21 June 1785
Case No. No 7.

A woman induced by fraud to marry an insolvent person, not entitled to withdraw her effects from the jus mariti of her husband.

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Jean Lisk, who enjoyed from a former husband a terce yielding annually L. 600, was courted by a gentleman pretending to be possessed of a free landed estate of L. 240 per annum. By the marriage articles, the whole effects belonging to the parties were to accrue to the survivor, Mrs Lisk at the same time having it in her power, in case of her predecease, “to burden the subjects in communion, etiam in articulo mortis, to the extent of what she brought with her.”

Instead of being in a condition to fulfil the above mentioned agreement, Mrs Lisk's husband, at the time of the marriage, was irretrievably bankrupt. A sequestration of his effects soon took place; when she brought an action against him, and the trustee for his creditors, for having it found, that he had no right to the rents of her terce-lands. It could not well be said, that the marriage-contract contained an express exclusion of the jus mariti; but Mrs Lisk offered to prove its having been her expectation, and that of her friends, that she was to enjoy her estate independent of her husband; from which, joined to the deception practised with regard to his situation in point of fortune, she

Pleaded; The matrimonial engagement, so far as relates to the union of the married persons, is indeed indissoluble from considerations of a pecuniary nature. In its effects, however, on the estates and property of the parties, it is to be viewed as an ordinary contract, and to be regulated by those principles of justice which influence other agreements. Where these have been brought about by fraud, it is the province of courts of equity to give relief, by annulling them; or where a mere voidance would not afford an adequate reparation, by imparting that effect to the contract which the injured party was induced to expect from it; Dict, voce Fraud; Principles of Equity, b. 1. c. x. § 1. 2. 5. Bacon's Abridgment, voce Fraud.

The pursuer, in the present case, could receive no advantage from annulling the marriage-articles, the marital rights being alone sufficient to transfer to her husband the whole produce of her estate. But as the marriage itself was occasioned by gross imposition on his part, and as it arose from the same cause, that the marriage settlement did not secure to her, as he gave her reason to expect, the unlimited administration of her own funds, he ought, as the only remaining method of redress, to be excluded from every participation of them.

Neither can the intervention of creditors create any difference in the present argument. A husband's interest in his wife's estate, being in its nature strictly personal, the same exceptions which would have been available against him, must be equally competent against those who, by the operation of legal diligence, are brought into his place. In questions of fraud, especially, their situation never can be better than his; because, by taking advantage of his wrong, they become accessories to it, and obliged, in the same manner with their principal, to indemnify the suffering party; Sir Archibald Grant contra The Creditors of Tilliefour, No 71. p. 949.

Answered; It is the union of the married pair, which, in the understanding of law, is the essential object of the nuptial connection. The advantages of wealth, as well as those of rank or superior qualities of mind, are only accidental appendages to that union; nor can the disappointment, or even the deception of either of the parties, with regard to them, detract from its validity, or alter in any respect its legal consequences; Reg. Maj. book 2, c. 16; Luoniam Atachiamenta. c. 20. 21. 22.; Balf. Pract. p. 111.; Stair, book 1. 4. 9.; Erskine, b. 1. tit. 6. § 13.

Neither does the marriage-contract give any support to the present action. Had an exclusion of the jus mariti been actually agreed on, the fraud of the husband executing the deed in the terms here used, might have been redressed in equity, as, without a rigid adherence to words, stipulations may be construed or enforced according to their true meaning; but it belongs to the legislative authority alone to substitute, instead of the covenant of parties, another essentially different, or to supply such defects in the execution of contracts, as render them in peculiar contingencies ineffectual for the purposes for which they may have been designed. The pursuer's situation is analagous to that of a creditor who has lent his money to a bankrupt on a personal bond, when, by requiring landed security, he might have recovered the debt; or who, from his having relied on an informal document, is not allowed to compete with other creditors; cases in which the wrong committed by the debtor admits of no remedy.

Another question likewise occurred, but did not then receive a determination, How far the pursuer, if not enabled to withdraw her estate altogether, was, nevertheless, in the circumstances of the case, entitled to a reasonable aliment out of it during the subsistence of the marriage?

The Lords, by a great majority, found, “That the creditors were not barred from affecting the rents of the terce-lands belonging to the pursuer, and falling under her husband's jus mariti.”

Lord Reporter, Ankerville. Act. Wight, H. Erskine. Alt. Lord Advocate Campbell, Abercromby. Clerk, Orme. Fol. Dic. v. 3. p. 244. Fac. Col. No 212. p. 331.