D. 428. Stewart of Ardvorlich contra Riddoch. eod. die.
DAVID Riddoch, by Contract of Marriage betwixt his Son Alex∣ander and Jonet Ballentyne, did dispone to the said Alexander his Estate: and thereafter did dispone the same to his second Son David Riddoch, for payment and with the burden of all his Debts: who did thereafter dispone the same to Stewart of Ardvorlich for a just price.
The said Stewart of Ardvorlich pursued a Reduction of the Disposition, contained in the said Alexander his Contract of Marriage; upon that Rea∣son, That the said Contract of Marriage was not delivered to the said Al∣exander, at the least there being but only one double subscribed, the same was given back to David Riddoch the Father; and was lying by him the time of his decease: And it was evident, that it was never intended, that any other use should be made of the said Contract, but only in order to get a Marriage to the said Alexander, as being provided to the said Estate; in swa far as the said Disposition, in favours of the said Alexander, was with∣out the burden of the Disponers Debts, which were very great; and did not so much as reserve his Liferent: Whereunto It was Answered, That the Contract was a mutual Evident, subscribed by both Parties, and that Marriage had followed upon the same; and therefore it could not be ta∣ken away, upon the pretence of not delivery.
The Lords Found, That tho the Contract had been beside the Father the time of his decease, it was not to be considered as instrumentum penes de∣bitorem, being a mutual Evident: But thereafter It was Replyed, That the Pursuer offered to prove, that not only the said Contract was lying by the Disponer, the time of his decease, but an Assignation blank of the said Contract; which, being in the Disponers Hands, was in effect a retrocessi∣on or Discharge of the Disposition, contained in the Contract: Which Re∣ply the Lords found Relevant. In praesentia.
This Reply was Found also probable prout de jure.