Lady Dowager Forbes v. Lord James Forbes [1765] UKHL 2_Paton_84

UKHL
Lady Dowager Forbes v. Lord James Forbes
[1765] UKHL 2_Paton_84 · 1765-01-29
Where the husband and wife, by marriage articles, conveyed the estate to themselves, and the survivor of them, for the wife's liferent use allenarly, reserving power to grant provision to daughters to the extent of £3000, and failing the husband exercising this power to the wife: Held, (1 st ,) That though the husband had granted provisions to his daughters in exercise of this faculty, to the extent only of £2000, that the wife was entitled, after his death, to execute an additional bond to the extent of £1000. (2 nd ), That where the liferentrix had entered into agreements restricting her liferent rights, through error in essentials, that she was still entitled to claim her rights as originally settled. (3 d ), That bona fide percepti et consumpti was not pleadable, and the respondent accountable, for the whole rents, feu-duties, and casualties since the date when her right accrued, reversing the judgment of the Court of Session: But, (4 th ), That she was liable for the interest of the heritable debts on Puttachie and Pittendriech.For the first branch of this case, which was remitted back from the House of Lords to discuss the remaining points, vide ante, p. 36.

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The questions involved were brought into Court, by Lord Forbes insituting an action of reduction against Lady Forbes, to set aside her new infeftment taken in the lands quoad the subjects not contained in her infeftment of 1730; and also for reduction of the heritable bonds, granted to her daughters by way of additional provision, and to have her compelled to pay the interest of the heritable debts, and to discharge him of the arrears of her liferent interest, in terms of the deeds of restriction, &c.; which reduction, being met by action of reduction at the instance of Lady Forbes, seeking, 1 st , To reduce the deeds of restriction, and for payment of the arrears of her liferent from her husband's death; 2 d , For declaring her right to the liferent of the superiorities and patronages, in virtue of the contract of marriage, and for payment of the bygone feu-duties; and, 3 d , For payment of the rents of the lands of Puttachie and Pittendriech, which had been possessed by Lord James, both before and since his brother's death, up till his own death in 1761.The marriage contract in question contained a clause of warrandice, by which Lord Forbes bound himself to warrant the liferent conveyance to his wife, “free of all former infeftments, liferents, annualrents, inhibitions, adjudications, or incumbrances.”After it was entered into, Lord Forbes being indebted to his brother James (the respondent's father, afterwards Lord James Forbes), in 1500, he, by contract with James, disponed in wadset his lands of Puttachie and Pittendriech, and obliged himself to infeft James therein, subject to redemption. James was infeft, entered into possession of the lands, and enjoyed the rents during Lord Forbes' lifetime, and afterwards until his own death in 1761.Lord Forbes also became indebted, during the marriage, to his brother in the sum of £2000, to Sir William Forbes in £1000, and to Mr. Ogilvy of Balbegno in £400. These were secured by heritable bouds, and infeftments were taken thereon, except on that of Mr. Ogilvy.In 1730 Lord William Forbes died, and, as already explained, had executed, six days before his death, the bonds of provision in favour of his daughters for £2000.Thereupon Lady Forbes was infeft in the estate of Forbes; but, besides that, there were other estates conveyed, and particularly described in the marriage contract,—namely, the lands of Puttachie and Pittendriech, in which no infeftment was taken, nor was any infeftment taken in the parishes

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The deeds of restriction were then entered into, agreeing to restrict her liferent provisions to the free liferent of the estate, after the annualrents of all heritable debts were paid, by which she further agreed to discharge all arrears of her liferent. These deeds were entered into on the representation on the part of Lord Forbes, that the estate was nearly exhausted with debt; while, on the part of Lady Forbes, they were entered into in the belief that her daughters' bonds of provision were reducible on the head of deathbed; and it was made a condition in the deeds, as part of the consideration for granting them, that these bonds were not to be impugned or questioned on that head.But upon Lady Forbes being afterwards made aware of her rights, she took new infeftments over the whole estate of Forbes, comprehending not only the whole property lands, including Puttachie and Pittendriech, but also the superiority lands and patronages.After the cases had been remitted from the House of Lords, to discuss the reasons of reduction quoad ultra , Lord James Forbes died, who was succeeded by the respondent.At this stage, the daughters of Lady F orbes brought their actions for their provisions; and Lady Forbes brought a new action for payment of the whole bygone feu-duties received by his father since 1730. And she having moved the Court, under the remit for application of the judgment of the House of Lords, this was done, the respondent only objecting in so far as it called on the Court to find that she, as liferentrix, was not liable in the interest of the heritable debts.July 11, 1760.On resuming consideration of the whole cause, the Lord Ordinary, Bankton, to whom the case was remitted, found, in terms of the judgment of the House of Lords; and in regard to the case otherwise, made “avizandum to the Lords, with the other points of the cause; and ordains both parties to give in memorials.”The new actions were then conjoined.Lady Forbes maintained that the deeds of restriction of the marriage provisions ought to be reduced, as having proceeded on a gross and fundamental error, she having been induced to believe that the bonds of provision granted to her daughters were good for nothing, and liable to challenge on the head of deathbed, which was not the case, and she maintained, that the infeftment of Lord Forbes in the lands,

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July 5, 1762.

Dec. 15, —

Jan. 19, 1763.Feb. 15, 1763.After proof of the respective averments of the parties, and minutes of debate.—The Lord Ordinary pronounced this interlocutor:
“Having considered the debate, sustains the defence of bona fide percepti et consumpti quoad any feuduties paid to the late Lord Forbes, prior to the interlocutor of this Court of the 2d August 1758, and quoad any entry money, or casualties of superiority, received by his Lordship, anterior to the judgment of the House of Lords, in February 1760, upon granting entries to the vassals preceding that period; and finds the defendant, Lord Forbes, liable as heir, cum beneficio inventarii , in all such paid and received by his father, subsequent to the said times.”
And upon advising a representation for the said Lady Forbes, and answers, the Lord Ordinary refused to alter, and adhered. Upon a petition to the Court, and answers thereto, “the Lords having advised the state of the process, testimonies of witnesses, writs produced, and above debated, they repel the reasons of reduction of the deed 1730, and articles 1735; but sustain the reasons of reduction pleaded by Lord Forbes, of the additional provision of £1000 sterling, by Lady Forbes, to the younger children in 1752; and remit to Lord Ordinary who pronounced the act, to proceed accordingly.” Of the same date, their Lordships pronounced this interlocutor,— “The Lords having advised the state of the process, testimonies of the witnesses, writs produced, and having heard parties procurators with respect to the wadset of Puttachie, and Ogilvie of Balbegno's

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Against these interlocutors, Lady Forbes brought an appeal to the House of Lords, in so far, 1 st , As the defence of bona fide percepti et consumpti quoad the feu-duties was concerned; 2 d , As they repel the reasons of reduction of the deeds of restriction 1730, and articles 1735; 3 d , As also during her possession of the lands of Puttachie and Pittendriech, she was liable in the interest of the wadset debt of £1500; and the annualrent of Ogilvie's bond, &c.Pleaded for the Appellant .—The effect of the deed of restriction of 1730, is to release the estate from the arrears of the jointure, to be incurred by reason of Lady Forbes keeping down the interest of the heritable debts; such release to be absolute, in case the bond of provision should stand; if not, then the arrears not exceeding £2000, were stipulated to be security in favour of the daughters, to that amount; and it is submitted that this deed ought to be set aside, the same having been obtained from Lady Forbes by surprize, and upon fundamental error; and by fraud and imposition, so far as the release of the arrears was extended to the collateral branches of the family. The deed was granted six days after the death of her husband, and before she was acquainted with, or advised on the circumstances of her husband's affairs, and her own

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Pleaded for the Respondent .—The appellant had most unquestionably a power to restrict her liferent annuity over the estate of Forbes, and, consequently, if such restriction was deliberately made, it cannot be now retracted, and she must now be bound, unless she can show that it proceeded on force, fraud, or fear; but none of these grounds have been alleged or proved against the deeds, which have remained unchallenged and acquiesced in by her for a period of thirty years. That, besides, there were existing circumstances

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After hearing counsel, it was

Ordered and adjudged that the interlocutors of the Lord Ordinary, of the 5th of July 1762, and the said interlocutor of the 15th December 1762 following, adhering thereto, be hereby reversed; and it is hereby declared, that the respondent is liable, as heir cum beneficio inventarii , for any feu-duties, entry money, or casualties of superiority paid to or received by his father, the late Lord Forbes; and it is further ordered, that so much of the interlocutors of the 19th January 1763, as sustains the reasons of reduction pleaded by Lord Forbes, of the additional provision of £1000 sterling, by Lady Forbes, to the younger children in 1752, be hereby reversed; without prejudice to the question concerning

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Counsel: For Appellant, C. Yorke, John Maddocks. For Respondent, Al. Wedderburn, Alex. Lockhart.Note .—Unreported in the Court of Session. Lord Mansfield presided in giving judgment.