Litigious by Infeftment. - By using an order of Redemption. - By Inchoate Inhibition.
Lord Clackmannan v. Lord Allardice
Date: 8 March 1631 Case No. No 88.
Click here to view a pdf copy of this documet : PDF Copy
A party who had wadset his lands, and taken a back tack containing a yearly duty more than the legal interest, did grant an infeftment of annualrent over the same lands to another creditor; and lastly, discharged the said back-tack. In a competition betwixt the wadsetter and annualrenter, it was objected against the wadsetter, That his wadset was usurious in terms of the act 251st, Parliament 1597. Answered, The back tack was discharged, the only branch of the transaction that was usurious; and as the common debtor neither did, nor could now make the objection, it is not competent to any other by the said act. Replied, Supposing the back-tack still subsisting, it would be competent to the annualrenter to object usury to his debtor's right; and this privilege could not be taken from him by his debtor's voluntary discharging the back-tack. Duplied, There is nothing in law to bar a common debtor to pass from any of his privileges, even after he has contracted debts real or personal, though these privileges, if subsisting, might be beneficial to creditors. The Lords found, that the back tack being renounced, though after the infeftment upon the annualrent right, the wadsetter had thereby right to the whole profits of the land, the objection of usury being thereby sopited.
Fol. Dic. v. 1. p. 559. Durie.
*** This case is No 17. p. 6317, voce Implied Assignation.
