Subject_1 COMPENSATION - RETENTION. Subject_2 SECT. XIII.
Real and Personal Rights, Whether Mutually Compensable.
Lord Whitekirk v. Ednem
1662.
February. Case No. No 89.
Found that an infeftment cannot be compensated with a personal debt.
Click here to view a pdf copy of this documet : PDF Copy
The Lord Whitekirk, as having right from the deceased Laird of Lugtoun to a wadset upon Ednem, containing a reversion and back-tack; it was excepted by Ednem, That Lugtoun, the cedent, was satisfied of a part of the sums, in so far as he did assign a bond made to him by the deceased Lady Ednem, in favours of one Trotter, with warrandice from his own deed; and notwithstanding of the assignation and warrandice, Lugtoun had discharged the old Lady Ednem of a part of the sums, which they instantly verified, and that therefore this wadset should be declared satisfied pro tanto. It was answered, 1mo, Contra singularem successorem, a personal debt by way of retention or compensation, cannot take away a real infeftment; which, without a valid renunciation or discharge, cannot so denude the party infeft, as that a singular successor may not acquire the right thereof, 2do. This ground of compensation is not liquid nor constant, seeing it depends upon an action of warrandice against Lugton's heirs.
The Lords repelled the allegeance, in respect of the first answer chiefly.
