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Scottish Court of Session Decisions


You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Bruce v Hepburn. [1684] Mor 57 (2 January 1684)
URL: http://www.bailii.org/scot/cases/ScotCS/1684/Mor0100057-001.html
Cite as: [1684] Mor 57

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[1684] Mor 57      

Subject_1 ADJUDICATION and APPRISING.
Subject_2 ADJUDICATION in SECURITY.

Bruce
v.
Hepburn

Date: 2 January 1684
Case No. No 1.

An adjudication, in security of provisions in a contract of marriage; ranked both for bygones, and for future annualrents, &c. pari passu, with an adjudication for liquid sums.


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In the action of mails and duties, pursued by Mary Bruce against Sir Patrick Hepburn, wherein she craved, That she having adjudged, upon contract of marriage with John M'Pherson, the sum of 8000 merks, due by Sir James Keith to Dougal M'Pherson, father to the said John, in liferent, and to the said John in fee; whereupon there was a comprising led, both at the instance of the liferenter, and fiar of Sir James Keith's estate; the ground of her adjudication, was an obligement, in the said contract of marriage, by her husband; whereby he was obliged to employ, for her liferent use, the sum of 15,000 merks, upon land or annual rent, and also to make payment thereof termly; in which adjudication, she adjudges not only for bygones, that were then due, but in time coming, the terms being come and past, and for fullfiling other obligements contained in the said contract. It was alleged for Sir Patrick Hepburn, That he having the first adjudication for liquid sums of money, she being within year and day, could only come in pari passu with him, as to the bygones that were due, at the time of the adjudication; but not as to what should be due thereafter, seeing that was not liquidate; and an adjudication was a judicial sale, and behoved to be for liquid sums.

It was replied for Mary Bruce, That the contract did not only contain an obligation to pay, but also an obligation to employ immediately after the marriage; and so she might adjudge this sum that belonged to her debtor, for a security to her, not only as to bygones, but in time coming during her life; and that the obligement was an obligement ad faciendum, viz. To employ: And the husband not having voluntarily fulfilled his obligement, this was the only remedy the wife had for her security; and that it was denied that all adjudications were for liquid sums as a judicial sale; seeing, in this case, it was only for a security, and the legal was never to expire during her life.

The Lords sustained Mary Bruce's adjudication, as a security to her, not only for bygones, but in time coming during her life; and ordained her to come in pari passu with Sir Patrick for both. *

Fol. Dic. v. 1. p. 4. President Falconer, No 75. p. 50.

* The same decision is thus mentioned by Lord Fountainhall, v. 1. p. 256.——Sir Patrick Hepburn of Blackcastle against Mary Bruce. Alleged, her adjudication is null; in so far as it adjudges, for her current annuity and liferent, for all years and terms subsequent to the date of her decreet of adjudication, during her lifetime; seeing that is an uncertain event, and nothing can be the ground of an adjudication, but a liquid sum, whereof the terms of payment was past, at the time of the adjudication.——Answered, The terms are now past; and she may adjudge lands for security of her liferent in time coming, as well as for bygones.——The Lords were divided on this; but at last they sustained the adjudication, even for years to come, as a security of her annuity, for all subsequent years during her lifetime.

The electronic version of the text was provided by the Scottish Council of Law Reporting     


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