Subject_1 IMPLIED DISCHARGE and RENUNCIATION. Subject_2 SECT. XIII.
Effect of Consent.
Earl of Errol v. Hay of Crimunmogat
Date: 23 February 1667 Case No. No 80.
A wadsetter disponed his lands without mentioning them to be redeemable. Though the person who was substituted in the reversion consented to the disposition, it was found that he was not precluded from using the reversion.
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The Earl of Errol pursues a declarator of redemption against Hay of Crimunmogat: It was alleged absolvitor, because the defender stands infeft upon a charter granted by Barclay, with the consent of the Earl of Errol, pro omni suo jure, long after the reversion granted by Barclay, whereupon this redemption proceeds. It was answered for the pursuer; 1mo, That the Earl only consents, and the charter bears that the sums were paid to Barclay, whose right produced is a wadset, granted by the Earl of Errol and Hay of Urie, bearing an express reversion to any lawful eldest son of Hay of Urie; which failing, to the Earl of Errol. Ita est, that the time the Earl subscribed this charter, Hay of Urie was alive, and had sons, at least in spe; so that the Earl of Errol had not thereby the right of the reversion, and therefore his consent, without any sums received, or any absolute wrrrandice, cannot extend to any supervening right, which he then had not actually, but in spe et in apparentia, 2do, The Earl's consent to Barclay's disposition, who had only the right of wadset, not bearing irredeemable, or absque reversion, cannot take away the express reversion of Barclay's right; for albeit an heritable right be presumed irredeemable, presumptio cedit veritati, and it cannot take away a reversion where it is.
The Lords found that the reversion granted in Barclay's right was not taken away by this posterior right and charter, but that the Earl's consent imported only his favour and good will to transmit the right to the defender; in respect of the allegeances aforesaid.
