Johnstone-Beattie v Johnstone

JurisdictionScotland
Judgment Date05 February 1867
Date05 February 1867
Docket NumberNo. 80
CourtCourt of Session (Inner House - First Division)
1ST DIVISION.

Lord Kinloch. Sheriff of Dumfriesshire. M.

No. 80
Johnstone-Beattie
and
Johnstone

Husband and Wife—Divorce—Marriage Contract.

PREVIOUS to the marriage of Margaret Elizabeth Grierson (now known as Mrs Johnstone-Beattie), the pursuer, with David B. H. Johnstone, son of John J. H. Johnstone, the defender, an antenuptial contract of marriage was, on 23d and 24th January 1860, entered into between the said David B. H. Johnstone, with the consent of his father, and his said father for himself on the one part, and Miss Grierson, with consent of her father, Lieut.-Colonel Grierson, and her said father for himself on the other part.

By this contract, Mr David H. Johnstone, described as ensign in Her Majesty's 92d Regiment, with consent and concurrence of his father, conveyed to the marriage-contract trustees all his rights and interests under the marriage-contract of his father and mother, and under three bonds of provision therein specified, for the purposes set forth in the contract, after which followed this obligation on the part of his father, the defender:—‘Farther, the said John J. H. Johnstone binds and obliges himself, during his lifetime, to pay to the said David B. H. Johnstone, whom failing, to the said Margaret Elizabeth Grierson, whom failing, to the children of the said intended marriage, a yearly annuity of L.200 sterling, and that at two terms in the year, Whitsunday and Martinmas, by equal portions, beginning the first payment thereof at the term of Whitsunday next to come for the half year preceding that date, and the next payment thereof at the term of Martinmas following, and so forth half-yearly, termly, and proportionally thereafter during the lifetime of the said John J. H. Johnstone, with a fifth part more of the said annuity due at each term of liquidate penalty in case of failure in the punctual payment thereof.’

On the part of Colonel Grierson, the lady's father, the contract contained a conveyance to the trustees of all his heritable and moveable estate (which was considerable) under reservation of his own liferent; and on the part of the lady there was an absolute conveyance of all her means and estate. Colonel Grierson also bound himself during his lifetime to pay to his daughter an annuity of L.100, free of the jus mariti and right of administration of her husband.

After detailing the purposes of the trust, which included the payment to the husband of a sum of L.2000 from the provisions payable to him under his father's marriage-contract and the said bonds of provision, when the same should become payable, and also of a sum of L.5000 from Colonel Grierson's means at his death, the contract concluded with a declaration that the provisions thereby conceived in favour of Miss Grierson, and of the children of the intended marriage, were in full satisfaction to her of all terce of heritage, half or third of moveables, or other claims whatsoever competent to her by and through the decease of her husband, and also in full satisfaction to the children of all claims of legitim or executry competent to them by and through the decease of their father and mother.

The marriage took place on 25th January 1860, and subsisted until 17th March 1865, when it was dissolved by a decree of divorce pronounced in an action at the instance of the wife against the husband on the ground of his adultery. The acts of adultery on which the decree bore to proceed were prior to the assignations hereinafter mentioned of the annuity of L.200 by Mr D. B. H. Johnstone to his creditors.

After the divorce, the wife (who took the name of Mrs Johnstone-Beattie) claimed right to the annuity of L.200, as payable to her on the dissolution of the marriage; and the defender having denied liability to her, she instituted an action against him in the Sheriff-court of Dumfriesshire, concluding for payment of the annuity.

In the record in the action the defender averred;—(Stat 2) ‘At the date of the said contract of marriage, at the date of the marriage which followed thereon, and down to the present time, the defender's son, the said David B. H. Johnstone was not, and is not, possessed of sufficient funds to maintain himself without assistance from the present defender. The said D. B. H. Johnstone still requires assistance from the defender suitably and reasonably to aliment and maintain him in the position which he occupies. The defender agreed to become a party to his son's marriage-contract, to the effect of granting his son a reasonable alimentary provision.’ (Stat. 3) ‘The obligation come under by the present defender in the antenuptial contract of marriage was granted in implement of the natural obligation incumbent on the defender to aliment and maintain his son in a reasonable and suitable manner, corresponding to his rank and position in society. The defender's son, the said D. B. H. Johnstone, still requires the said allowance for the purpose for which it was originally granted.’ (Stat. 5) ‘The annuity in question has been specially assigned by the said D. B. H. Johnstone to certain creditors, viz., (1) To Francis Partridge, Esq., 21 Throgmorton Street, London, in security of L.1700, conform to bond and assignation in security, dated 23d February 1863; and (2) To Robert Mackay, W.S., in security of L.1000, conform to bond and assignation in security dated 27th December 1864. Both of these assignations have been intimated to the defender. The assignees in the said assignations are onerous creditors of the said D. B. H. Johnstone, and the assignations were granted for value received. They were granted without the knowledge of the present defender, who had no concern therewith until they were legally intimated to him.’

Neither Mr D. B. H. Johnstone nor his assignees were called as parties to the action.

The pursuer pleaded;—(1) When a marriage has been dissolved by divorce, the innocent party becomes entitled, so soon as decree to that effect has been pronounced, to every provision, both legal and conventional, that she or he would have been entitled to by or through the decease of the offending party. (3) The marriage having been dissolved by decree of divorce obtained by the pursuer as aforesaid, her right to said annuity vested in her on 17th March last, being the date of said decree, and she thereby and by the foresaid contract of marriage became legally entitled to payment thereof in manner libelled. (4) The said D. B. H. Johnstone and his pretended assignees having had no interest whatever in said annuity subsequent to the date of the said decree of divorce, and the pursuer having preferred no claim against him or them personally in this action, she was not bound to make either of them a party thereto, nor is she bound yet to call either to the action. (6) It was ultra vires of the said D. B. H. Johnstone to assign the foresaid annuity, to the pursuer's prejudice; and even assuming that the pretended assignations thereof were executed by him, they could not convey any greater right than he had himself under the marriage-contract.

The defender pleaded;—(1) The pursuer has not set forth statements relevant or sufficient to support the conclusions of the action. Farther, neither the said D. B. H. Johnstone, nor his assignees, being parties to the present action, the same is incompetent. (4) The annuity payable by the defender to his son, the said D. B. H. Johnstone, being of an alimentary nature, and for the maintenance of the said D. B. H. Johnstone, the pursuer has no right thereto during the life of the said D. B. H. Johnstone. (5) On a sound construction of the antenuptial contract of marriage, the defender's obligation to pay the annuity in question was an obligation to pay the same during the natural lifetime of the defender's son, the said D. B. H. Johnstone, and while the defender himself survived, and the pursuer has no right to the said annuity during the natural life of the said D. B. H. Johnstone.

On 17th November 1865 the Sheriff-substitute pronounced an interlocutor, finding ‘that, so far as concerns the defender in this action, the decree of divorce libelled conferred upon the pursuer no rights, and imposed upon the said defender no obligations, under the antenuptial contract libelled, beyond such as are expressly stipulated and provided for within the contract itself; that, on a sound construction of said contract, the obligation...

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