Elizabeth Moodie, Spinster, a Pauper v. John Stewart of Burgh [1730] UKHL 1_Paton_20

UKHL
Elizabeth Moodie, Spinster, a Pauper v. John Stewart of Burgh
[1730] UKHL 1_Paton_20
The heir under a marriage contract may, during his father's lifetime, renounce for himself and his successors all claims under the contract.

Subject_ idiotry . —

In a reduction of a deed ex capite furoris , after the death of the granter, a general allegation of idiotry not relevant.1638.1661.Robert , the son of Edward Stewart of Burgh, intermarried with Barbara, the daughter of Hugh Halcrow. By the marriage settlement, Edward Stewart, on the one hand, became bound to convey his lands of Burgh and others, in favour of his son Robert and the heirs of the marriage; and on the other part, Hugh Halcrow conveyed his lands of Cletts, &c. to the said Edward Stewart, who again conveyed them in favour of his son Robert, and the heirs of the marriage. Of this marriage there were born two sons,—Edward, who died young, and Robert,—and one daughter. Robert, the father, having survived his wife, entered into a second marriage, by the articles of which he settled all the above lands on the heirs to be procreated of the marriage. By this second wife he had issue three sons, of whom John (the respondent) was the eldest.

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1665.1666.1686.Robert, the father, by successive dispositions conveyed the whole lands in favour of his son John, and the last of these dispositions recites, as the consideration of it, that John had undertaken to pay all the granter's debts, and the portions which he had appointed for his other children.February 1687.Of this date, Robert, the father, with concurrence of John, conveyed the lands of Burgh in favour of his son Robert, in consideration of which, the latter executed a deed of renunciation, (which narrates this grant,) whereby he renounces all claim whatever competent to him under his mother's contract of marriage.1691.In 1691, an agreement was entered into between Robert, the son, and John, whereby, upon John's granting a bond for an annuity to him and his wife of 300 merks per annum, and for a sum of 4000 merks to him and his wife in liferent, and their son in fee, he conveyed to John the said lands of Burgh. Robert the son enjoyed this annuity until his death, when he left the bond for 4000 merks to his son Robert.This Robert (the grandson) assigned the bond for 4000 merks to Elizabeth Moodie, (the appellant,) who had been at the expense of his maintenance and education, and likewise executed in her favour a farther bond for L.60,000 Scots, upon which she obtained a decree of adjudication. Founding upon this title to pursue, she instituted an action of reduction for setting aside John's title as null and void, being at variance with the provisions of the foresaid contract of marriage. A second ground of reduction was, that the renunciation had been

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John produced as his title the several conveyances by his father in his favour, and likewise the agreement 1691, and the discharge and renunciation 1687, above mentioned.It was pleaded for Elizabeth Moodie;—although Robert, the son of the first marriage, was heir presumptive of that marriage, yet in reality he had no right in him. During his father's lifetime, he had no more than an expectancy, which he could not sell or dispose of in prejudice of his successors; and he having died without serving heir, or making up any title to the lands, he never acquired the power either to convey or renounce his right, and his son Robert became the heir of the marriage to whom the provisions were made. The pursuer, therefore, having by her adjudication carried all right that was in him, had good title to insist that the renunciation, (granted by one, who, in his father's lifetime, could not possibly be his heir,) had no effect to bar the action of the subsequent heir, who had legally completed his titles.Answered for John,—1. Robert being the only son of the marriage, constitit certissime de persona , that he was the person for whom provision was made under the marriage contract, and there could be no reason to hinder him from accepting present satisfaction in lieu of that provision. In consideration of that satisfaction, he might make what agreement he chose, and might renounce and discharge for himself and his issue who were not then in existence. If it were not so, then the heir

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2. Robert, the father, continued full fiar of the estate, notwithstanding the marriage contract, and he might burden or convey the lands. If the conveyance was gratuitous the son might challenge it. This was a right which the son had in him, even during his father's lifetime, and which he might renounce to the effect of validating his father's deed. Death-bed deeds may thus be made unchallengeable even during the granter's lifetime.The pursuer (in a duply) offered to prove that Robert was a person furious and fatuous, and that he was circumvented when he granted the deed of renunciation.June 11, 1726.The Lord Ordinary, of this date, pronounced the following interlocutor:
“Repels the objections against the writs produced, founded upon the first contract of marriage, in respect of the reply, and the discharge and renunciation by the heir of that marriage also produced; and therefore finds the writs produced by the defender sufficient to exclude; and makes avisandum therewith; but refuses to grant certification, without prejudice to the pursuer to insist upon her further reasons of reduction and duply, that the granter of the said renunciation was a weak man, and the discharge and renunciation was unduly elicited from him, or that he was fraudulently imposed upon in the granting thereof, or that he was furious, fatuous, or under other natural incapacities for granting of the deed.”

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July 8, 1726.July 24, 1726.This interlocutor, being brought before the whole Court upon a petition and answer, was, of this date, adhered to; and a second reclaiming petition was refused without answers.February 21, 1727.On the other ground of reduction, the Lord Ordinary allowed “the pursuer before answer to prove prout de jure that Robert Stewart, the granter of the said discharge and renunciation founded on by the defender, was a weak man, and that the discharge and renunciation was unduly elicited from him, or that he was fraudulently imposed on in the granting thereof, or that he was furious, fatuous, or under other mental incapacity for granting of the said deed, and assigns the first of June next to the pursuer's procurators for proving thereof, and grants diligence.”Against this interlocutor John petitioned, on the grounds, first , That even if it were true that the granter had been circumvented, his repeated homologation of the deed was proved by regular receipts for the annuity which were produced; and second , As to the furiosity, that it was not competent to plead it at a period so long after the granter's death; but at any rate, that the pursuer must particularise the circumstances from which the furiosity is inferred, and must also state that the granter was under the influence of the disorder, not only when he executed the deed, but likewise at the time of each subsequent act of homologation.June 10, 1727.The Court, of this date, “Find the general allegation of furiosity as proposed by the pursuer not relevant, and ordain her to give in a particular

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January 17, 1728.A reclaiming petition against this interlocutor was refused, and, of this date, the Court pronounced their final judgment on the whole cause assoilzieing the defender.Entered February 9, 1728.Amended February 28.The appeal was brought from “several interlocutors, of 11th June, 8th and 24th July, 1726; 10th June, 18th day of July, 1727, and 17th January, 1728, made on the behalf of John Stewart; and praying that the same may be reversed, and that the interlocutor of the Lord Ordinary 21st February last may be affirmed.”The arguments in the House of Lords were the same as those of which a summary has been given above.Judgment February 6, 1730.After hearing counsel, “it is ordered and adjudged, &c. that the appeal be dismissed, and that the several interlocutors therein complained of be, and are hereby affirmed.”.Counsel: For Appellant, P. Yorke and Will. Hamilton. For Respondent, Dun. Forbes and C. Talbot.It cannot be gathered with certainty from the appeal papers whether or not Robert survived his father. As this is an important point, and was inquired into with much anxiety in deciding the case of Routledge v. Carruthers , ( May 19, 1812, Fac. Col. Dow, IV.) it may be remarked that several circumstances support the belief that the father predeceased. In particular, it is mentioned by the respondent, that “he had enjoyed all his father's estate, except the lands of Burgh, for more than 40 years; and the lands of Burgh he has possessed without molestation from the year 1691.” Now it is clear that John had not taken immediate possession in virtue of the conveyances by his father in his favour, because his father, in 1687, dispones part of

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It is also founded upon in the argument, that Robert had died without serving heir to his father, which statement almost necessarily implies the fact that the son had survived.This presumption is further supported by the probable age of the father, the marriage having taken place in January 1638, while the son lived, at least until 1700. There is some uncertainty as to the precise period of his death. In the appellant's case, it is said; that “Robert the son died in 1700;” whereas, in the respondent's case, he is said to have “received annually for thirteen years his annuity,” which had been settled on him in 1691, according to which statement, he must have survived till 1704.