A wadset granted to a brother for his portion, containing a tack to commence after redemption, sustained, notwithstanding act 1449, cap. 19.
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The Laird of Polwart pursues a declarator of redemption against Hooms; who alleges, Absolvitor, because the reversion was not fulfilled, which bore the sum of 1000 merks, and a tack for 19 years after the redemption. The pursuer answered, The allegeance ought to be repelled, because the lands wadset are worth 400 merks by year, and the tack-duty is only £.4, and so it is an usurary paction, whereby the wadsetter will have much more than his principal sum, and his annual-rent, and so it is null, by the common law, and by special statute, Par. 1449, Cap. 19. bearing, that when wadsetters take tacks for long time, after the bond be out quite, such tacks shall not be keeped after redemption, unless they be for the very mail, or thereby. The defender answered, first, That statute is but an exception from the immediate preceding act of Parliament, in favours of tenants, that their tacks shall not be broken by singular successors buying the land, and therefore is only understood in that case when the wadset lands are bought from him that hath right to the reversion, by a singular successor; but this pursuer is heir to the granter of the wadset; 2dly, That act is long since in desuetude; 3dly, Whatever the act might operate among strangers, yet it is clear, by the contract of wadset produced, that the wadset was granted by the Laird of Polwart to his own brother, and so must be reputed to be his portion natural; and the eldest brother might well grant a nineteen years tack to his youngest brother, albeit there had been no wadset; likeas, in the wadset, there is reserved the life-rent of a third party, who lived thirty-six years thereafter, during which time the wadset got no rent.
The Lords found the defense and reply relevant, and ordained no declarator to be extracted till the tack were produced, and given up to the wadsetter.
