DIGEST OF THE SCOTTISH LAW OF CONVEYANCING. MOVEABLE RIGHTS. Division I. CHAPTER I. GRANTERS OF DEEDS. By the law of Scotland, every person who is of full age Any person of full age and or subject to no legal incapacity and subject to no legal incapacity can grant inter vivos mortis causâ deeds, relating either to heritable or to move- can grant able estate. But it has to be considered how far deeds deeds, inter can be granted by, or on behalf of, the following parties:- causa. I. MARRIED WOMEN. II. PUPILS. vivos or mortis III. MINORS. IV. INSANE PERSONS. V. PERSONS UNDER INTERDICTION. married women. woman may have estate I. DEEDS BY MARRIED WOMEN.-A married woman I. Deeds by may have heritable estate or moveable estate free from the jus mariti and the right of administration of her Married husband; or she may have estate free from the jus mariti but not from the right of administration. a wife has estate, from which the jus mariti and right of administration are both excluded, she herself grant deeds relating to it; she can, without her husband's from the jus consent, convey, assign, or lease it, or grant obligations administra B When the jus mariti and jus admin the istrationis. can woman having Married estate free mariti and jus tionis can grant deeds ad facta præstanda connected with it. When she has relating to it. estate free from the jus mariti only, her inter vivos deeds ministrationis relating to it require her husband's consent. As a rule not excluded, she cannot, even with her husband's consent, grant valid If the jus ad her deeds re band's consent. Married quire her hus- personal obligations, and the Married Women's Property (Scotland) Act, 1881 (44 and 45 Vict. c. 21), has not altered this rule. For example, she cannot grant bonds, Greenlaw, M. 5957; bills, Strathmore, 6 W. and S. 56; promissory notes, M'Lean, 14 R. 448; cautionary obligations and guarantees, Harvey, M. 5980. Her personal obligations are null, and will found diligence neither against her estate nor against her person, Greenlaw, M. Exceptions to 5957; Matthew, M. 5959. But to this general rule the rule that married woman cannot grant personal obligations. there are various exceptions : (1.) If a woman is judicially separated from her husband, or if she holds an intimated order of protection from the Court, she can grant personal obligations, which will be as valid as obligations granted by an unmarried woman, Conjugal Rights (Scotland) Act, 1861, §§ 5, 6. (2.) A woman, who is living separate from her husband, but who has no decree of judicial separation or order of protection, can grant, for necessaries supplied to her, an obligation which will be valid against her estate, Fraser on Husband and Wife, vol. i. p. 549. (3.) If a married woman carries on business on her own account, when her husband is abroad, her personal obligations connected therewith will be as valid as obligations granted by an unmarried woman, Churnside, M. 6082; Orme, 12 S. 149; and if she invests her own estate in trade, even when she is living with her husband, her personal obligations connected therewith will be good against her estate, but not against her husband, Biggart, 6 R. 470. (4.) An obligation granted by a married woman is valid, if she homologates it after her marriage is dissolved, Gordon, 5 Br. Sup. 932. (5.) A married woman can grant an obligation, the counterpart of which is in rem versum of her -e.g., for a debt incurred by her relative to her own estate, Lassels, M. 6078; and diligence in respect thereof is, even during marriage, competent against her estate, Bell's Prin. §§ 1611, 1612; Fraser on Husband and Wife, vol. i. 537. (6.) If a husband is abroad, his wife can grant, for necessaries to herself and family, an obligation, which will be as effectual as an obligation granted by an unmarried woman, Gairns, M. 5954; Hay, M. 5956; Russell, M. 5878; Fraser on Husband and Wife, vol. i. 553. (7.) Wives, whose husbands are outlaws, can grant personal obligations, which will be as valid as obligations granted by unmarried women, Dall, Elch v. Husband and Wife, No. 1. (8.) If a husband is imprisoned for a period of years, it is thought that his wife can contract as if she were unmarried, Fraser on Husband and Wife, vol. i. 547. (9.) A married woman who, by fraudulently holding herself out as unmarried, induces a person to enter into contracts with her, is bound to implement such contracts, Fraser on Husband and Wife, vol. i. 544. (10.) Married women, granting obligations ad facta præstanda, are bound, as a rule, to implement them, Fraser on Husband and Wife, vol. i. 554. Judicial ratification by wife. Wife's testamentary deeds. II. Deeds on behalf of pupils. A pupil cannot grant deeds inter vivos or of Infants Act. When a married woman grants, with the consent of her husband, deeds in favour of third parties, affecting her own estate or any interest she has in his estate, she usually executes a deed of ratification of them before a justice of the peace and outwith the presence of her husband. The deed of ratification sets forth that she was not coacted, compelled, or seduced to grant or to concur in granting the deed ratified, and contains an oath that she will not impugn it. Both she (or a notary public for her, if she cannot write) and the justice of peace sign it, but no witnesses to their signatures are required. For form see Juridical Styles, vol. i. 96. Ratification bars her from challenging deeds on the ground that she executed them when acting under the force and fear of her husband, but not on other grounds. See Fraser on Husband and Wife, vol. i. 819-823, and authorities there cited. A married woman can, without the consent of her husband, grant testamentary deeds relating to her heritable or moveable estate, whether the jus administrationis is excluded or not. II. DEEDS ON BEHALF OF PUPILS.-A Pupil-i.e., a male under fourteen or a female under twelve years of age cannot grant an inter vivos or a mortis causâ deed dealmortis causing with moveable or heritable estate, a pupil being considered "incapable of acting, or even of consenting," Ersk. 1, 7, 14. Deeds on behalf of pupils are granted by their Guardianship legal guardians. Prior to the Guardianship of Infants Act, 1886 (49 and 50 Vict. c. 27), the legal guardian of a pupil's estate was the father, a tutor-nominate, a tutor-atlaw, a tutor-dative, or a factor loco tutoris of the pupil ; but by that Act it is provided—(1) that on the death of the father of a pupil, the mother, if surviving, shall be the guardian of the pupil, either alone when no tutor has been appointed by the father, or jointly with any tutor appointed by the father; (2) that the mother of any pupil may by deed or will appoint any person or persons to be tutor or tutors of such pupil after the death of herself and the father of such pupil (if such pupil be then unmarried), and that where tutors are appointed by both parents they shall act jointly; (3) that the mother of any pupil may by deed or will provisionally nominate some fit person or persons to act as tutor or tutors of such pupil after her death jointly with the father of such pupil, and that the Court, after her death, if it be shewn to the satisfaction of the Court that the father is for any reason unfitted to be the sole tutor of his children, may confirm the appointment of such tutor or tutors, who shall thereupon be authorised to act, or make such other order in respect of the guardianship as the Court shall think right, §§ 2, 3, 8. Before the passing of the Guardianship of Infants Act, 1886, tutors-at-law, tutors-dative, and factors loco tutoris were deemed tutors under the Pupils' Protection Act, 1849 (12 and 13 Vict. c. 51); but by the Guardianship of Infants Act, 1886, fathers (as administrators-in-law), tutors-nominate, and tutors appointed or acting in terms of the Act, are also deemed tutors in the sense of the Pupils' Protection Act, 1849, but they, unlike tutors-at-law, tutors-dative, and factors loco tutoris, do not require to find caution for their intromissions; 49 and 50 Vict. c. 27, § 12. Tutors under the Pupils' Tutors can Protection Act, 1849, as extended by the Guardianship ordinary acts of Infants Act, 1886, can perform acts of ordinary and tion, and grant necessary administration relating to the estate of their nected therewards, and grant such deeds as their wards, were they majors, might be compelled to execute. Tutors may e.g., receive and discharge debts due to pupils, Graham, M. 16,339; Cattanach, 20 D. 1206; do diligence against the pupil's debtors, remove tenants, grant leases to continue during the tenure of their office, A. v. Marquis of Huntly, M. 16,285; Ross, March 9, 1820, F.C.; compromise claims, at least affecting moveables, perform of administra deeds con with. |