In a declarator of redemption of a wadset, no personal right will operate against a singular successor to the wadsetter.
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One Hunter being infeft in the lands of Haggs by L. of Spottiswood, which L. of Spottiswood had long before given an heritable infeftment of his quarter of the said lands to Hardie, and Hardie at the same time having granted back to Spottiswood a reversion, making mention, that whereas he had that same day received heritable infeftment from him, of his four merk land of Haggs, (for so designed the reversion the lands, albeit his infeftment designed the alienation, to be of his quarter of the lands of Haggs,) yet he granted the four merk land to be redeemable, by payment of a sum, and a 15 years tack of the land after the redemption; according to which reversion, Thomas Hunter using the order, and pursuing redemption, and consigning a tack of the four merk land of Haggs; the defender alleged, That this redemption could not extend but to a four merk land, and could not be effectual to redeem the whole quarter land, as the pursuer craved in his order and summons of redemption, but only for a merk land; seeing he was infeft in a whole quarter, which consisted of a seven merk land and a half, and the reversion, which he gave back, was but only of a four merk land. Notwithstanding of the allegance, the Lords found, that the reversion extended to all which was contained in the charter; for albeit the charter was of the whole quarter, and the reversion designed only for the four merk land, yet being done all at one time, in one day, and before the same witnesses; and the reversion making mention, that for somuch as he had obtained then instantly an heritable charter, and right of the four merk land, there being no other charter, nor right but the alleged, wherein it was called a quarter, the Lords Found, That the reversion extended to all which was disponed, and so to the whole quarter. And whereas the tack consigned by the pursuer bore, a tack of the four merk lands, according to the words of the reversion, the Lords found nevertheless, That this tack should not extend to the whole quarter, but only to so much of the quarter of that land, as was possessed by him the time of the acquiring of that heritable right and sasine, and not to any more of the land, seeing the defender bruiked only a three merk land and a half of that quarter, and the other four merk land was bruiked synsine by other two tenants, nor never paid duty to him. The Lords found, That this tack should extend to be a tack of that which he possessed, viz. whereby to bruik the three merk land and an half, and no more; and so by this decision, albeit the reversion be to redeem the four merk land, and the heritable right was of the whole quarter, and that the quarter consisted of a seven merk and half merk land; and that the reversion appointed a tack to be given of the four merk land; yet because the defender possessed only three merk and an half of that quarter, and had no posseesion of the rest; it was found, that the wadset extended, and was effectual for no more than that proportion which he possessed then, and continually synsine; and the tack should comprehend no more, notwithstanding of any thing contained in the reversion and wadset; albeit also the other tenants had a contract of the pursuer's author, whereby they bruiked the rest of the quarter, viz. the other four merk land, and which being personal, defended not against the pursuer, who was a singular successor, and which right of theirs, and possession, this defender present also allowed to them.
