lence, and that the husband had frequently used violence towards his wife.1 1 But reverentia maritalis, joined with luctus et moror, was found not relevant to infer reduction of a deed granted by a wife when her husband was on his deathbed. Nor will the frownings and other undue importunities of the husband,' unaccompanied by violence or positive threats, authorize reduction; nor the fear of an awful answer and cruel husband.' 3 The question, how far ratification by the wife will protect third parties against reduction at her instance, has been already considered; and it is unnecessary here to do more than remind you of the observation of the Court in the case of Hay, that they act more cautiously who take such ratifications.' Deeds extorted by creditors from their debtors, metu carceris, when such deeds are not confined to the debt on account of which the imprisonment has taken place, or is threatened, are reducible.5 Fraser's case had reference to an absolute disposition of lands; and the right of the disponee, who was likewise a creditor of the granter, was reserved to the extent of a security for any debt due by the granter to him. On this point, I refer also to the case of Tait, where a discharge by a married woman was reduced under special circumstances, one of which was that she was constrained to grant it by imprisonment. But the objection of metus carceris is not available if the deed, though granted in prison, whilst in fear of incarceration, is not in favour of the incarcerator, but of a third party, with whom there is no collusion." And incarceration, actual or threatened, on a legal warrant, is vis legalis; and it is not unlawful for a creditor to take from his debtor a bond of corroboration, applicable solely to the debt in respect of which the imprisonment has taken place or is threatened, nor security exclusively for payment of that debt.8 The corroboration or security, however, must be strictly confined to the debt on account of which the imprisonment has taken place, or is threatened; as to any further purpose, it will not be sustained." The distinction between the cases of corroboration or security, applicable exclusively to the particular debt, or going beyond that debt, is well illustrated in the case of Heriot.10 It is not essential that the violence or threats should operate bodily fear to the party who grants the deed sought to be reduced. Where an aged man was apparently in imminent danger of violence, a bond granted by his son, in order to procure his father's release, was reduced." And the 1 Woodhead, 24th July 1662, M. 10,281. 2 Murray, 24th Jan. 1674, M. 16,488, and 6525. 3 Johnston, 1st July 1708, M. 16,511. 4 Hepburn, 16th June 1613, M. 16,482. See also Elibank, 11th July 1821, 1 Sh. 117. 5 Arrat, 23d March 1718, Robertson's App. 234; Bell, 24th Feb. 1762, M. 16,515; and Fraser, 13th Dec. 1810, F. C. Tait, 4th June 1831, 9 Sh. 680. 7 Pringle, Dec. 1682, 2 Br. Sup. 27. 8 Bishop of Ross, 30th June 1670, 2 Br. Sup. 479; Ker, 9th Dec. 1698, M. 16,503. 9 Burnet, 18th Feb. 1680, M. 16,494. 10 Heriot, March 1682, M. 16,496; Nisbet, 18th Dec. 1708, M. 16,512. 11 M'Intosh, Dec. 1671 and June 1672, M. 16,485-6. fear need not be of violence or bodily harm. Thus an obligation, granted to one in liege poustie, by his heir, through fear of being disinherited, binding the heir not to reduce any deed or settlement which his relative might make on deathbed, was held not to preclude the heir from setting aside a deathbed deed to his prejudice.1 The plea of vis et metus is available, not only against the offending party, but also against onerous third parties.2 1 Inglis, 4th Dec. 1733, M. 3327. Wightman, 6th Dec. 1787, M. 1521; and VOL. I. M TITLE VII. HOMOLOGATION AND REI INTERVENTUS. CHAPTER I. THE principle on which a deed receives effect is, as already explained, that it expresses the intelligent and deliberate consent of the party who grants it; and the necessity for intelligent and deliberate consent, in order to make a deed valid, is the ground on which pupils and certain other classes of persons are wholly, or to a certain extent, under disability as to granting deeds. But what is wanted in all cases is consent from a qualified party. If such party will not express his consent otherwise than by a formal and duly authenticated deed, the law will hold him free until he has executed such deed; but if, waiving the protection afforded by the law in that particular, he takes some way of his own to express his consent, the law does not insist on the strictly formal mode being adopted. The essential is the consent, which will be taken from a qualified party, in such competent, but of course distinct and unequivocal, way as he chooses to HOMOLOGATION. give it. Hence the doctrine of Homologation (literally saying the same thing'), which, as far as concerns the department of Conveyancing, is the subsequent approval of a deed in itself imperfect or null, for want of the legal solemnities, or through the incapacity of the parties, or in respect of fraud, or on some other ground. The doctrine of homologation applies with especial force to the case of a contract of marriage, on the faith of which marriage has followed. Where it was attempted to reduce a marriage-contract, in respect of certain alleged defects in the solemnities of authentication, the Court unanimously sustained the contract; Lord Gillies observing that, when a marriage has been solemnized on the faith of an antenuptial contract, it is not enough to allege defects in the solemnities of deeds in order to 'warrant a reduction; there must be actual forgery of the deed libelled 'to make the ground of reduction relevant." In an earlier case, an ante1 Falconar, 14th Jan. 1830, 8 Sh. 312. 1 nuptial contract, signed by the husband and the wife's father, but not by the wife herself, was held binding upon all concerned, including the wife, to the effect of making a discharge of her claim of terce, contained in the contract, good against her, although she had not signed the deed. The want of her signature seems to have been accidental, and her connexion with the deed, and the identification of the deed as the contract on which the marriage had followed, were sufficiently established.' The lady's connexion with the contract is of course essential, otherwise even marriage could be no homologation on her part. Accordingly, proposals of marriage,—given by the intended husband to the bride's brother, a lad of fourteen years of age, who stated that he had not approved them, nor shown them to his father or sister, and with which there were apparently no grounds for connecting either of these parties,--were not considered as a marriage-contract, notwithstanding the subsequent marriage.2 But deeds of every kind, in themselves lawful, may be made obligatory by homologation, though wanting in the prescribed solemnities. A bond, in which one of the witnesses was not designed, was sustained, in consequence of the debtor paying interest, and half the principal, and raising a process of suspension as to the other half. A submission by a wife, regarding her heritage, to which there was only one witness, was sustained, because her husband appeared and pleaded on her behalf before the arbiter. The husband being the wife's administrator, his consent was held to imply hers. A will, neither holograph nor tested, was found to be homologated by a writing of the residuary legatees' subjoined to it, and by their taking possession of the testator's estate in terms of it.5 These cases have reference to deeds imperfect as regards the legal solemnities. But homologation will equally remove imperfections in other respects, provided always these do not amount to intrinsic nullities. For example, a deed by a minor, without consent of his curators, may be homologated after majority; or a deed by a married woman, by acts of approval done by her after she became a widow. A deed, open to reduction on the ground of fraud, may be homologated and rendered unobjectionable. And even the plea of vis et metus may be excluded by homologation. But a deed or act in itself unlawful, whether by Statute or at Common Law, cannot be made good by homologation. Consent, on which alone homologation is founded, is excluded in every form as to such deeds and acts. Moreover, a deed signed by one legally or naturally incapable of consent, as a pupil, or an idiot, is truly no deed, and cannot admit of homologation.10 Lord Moncreiff says, 'An act, in 8 1 Wemyss, 16th Nov. 1760, M. 9174. 2 Campbell, 5th June 1812, F. C. 3 Sinclair, 17th Feb. 1715, M. 5654. 4 Tailfer, 21st Jan. 1735, M. 5657 & 17,032. 5 Pollock, 20th November 1849, 12 D. 143. 6 Hume, 28th June 1671, M. 5688. 7 Mitchell, 10th Dec. 1672, M. 5711. 8 Dunbar, 16th Jan. 1672, 1 Br. Sup. 649; and M'Michan, 22d June, 1839, 1 D. 1085. 9 Grant, 11th July 1706, M. 16,509. 10 Erskine, iii, 3. 47. ADOPTION. 1 itself null from its incompetency, cannot be homologated." This remark had reference to a summons signed by one who had no authority, and as to which there were other equally fatal irregularities, and which the Court held incapable of homologation. The case brings out clearly the principles on which homologation can take place, and those on which it is excluded. Lord Cringletie there says, 'Parties are entitled to a 'citation to appear in Court, and they may waive their right, and appear without it. But there must be a summons to which the judge 'must look, and without which he cannot entertain any action, as there is no such proceeding as a defender being brought into Court obtorto 'collo.' But if the document, even when null as a deed, and incapable of homologation, is in an intelligible and precise shape, it may be made operative by adoption, which, though resembling homologation, has different results.2 Having regard to the principle on which homologation rests, it is obvious that the plea is available only when the party is aware of the existence of the deed said to be homologated, as also of his right of objection, and of the consequence of waiving such right. There can be no intelligent consent to that of which we are not duly informed. Thus, a party who had a right of legitim, of which she was entirely ignorant, accepted, for several years, the interest of a provision in her favour, made by her father, as in full of legitim. She was found not barred of her right to claim the legitim, and to repudiate the provision.3 The party who is to homologate and ratify an imperfect deed should have the fullest possible information given him regarding his legal rights, and the effect of his executing the proposed ratification, and full time to deliberate, and obtain advice as to the course he ought to take, more especially if he is young, and not experienced in business. In the case of Murray, the right of reduction of a deathbed deed by his predecessor was found not barred to the heir-at-law by a deed granted by him during his predecessor's lifetime, whereby he renounced his legal rights; nor by another deed executed subsequently to the predecessor's death, ratifying the former one; the heir having just attained majority, being imperfectly educated, little, if at all, informed of his legal rights, and without the assistance of any law-agent or adviser. The acts on which the plea of homologation is founded ought to imply acquaintance with the contents of the deed homologated; and the mere subscribing as witness to a deed does not, in general, infer the witness's homologation; because witnesses simply attest the party's subscription, and in general are not informed of the contents of the deed which they subscribe as witnesses. But where the deed is a marriagecontract, and the witness the bride's 2 Cumming, 19th Nov. 1833, 12 Sh. 61. 3 Johnstone, 29th Nov. 1825, 4 Sh father or brother, a presumption Trustees, 17th July 1857, 19 D. 1040; and Douglas, 28th June 1859, 21 D. 1066. |