Certification against the reverser found not to militate against a proper wadsetter publicly infeft.
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Major Biggar having right to the teinds of Wolmet from the Earl of Lauderdale, pursues David Cunningham of Dankeith, and Jean Douglas, relict of Wolmet, his spouse, for spuilzie of the teinds, restricted to wrongous intromission, and insists for the fifth of the rent. The defenders allege, Absolvitor, because they produce a valuation of the teinds of Wolmet, obtained at the instance of umquhile Patrick Edmonston of Wolmet, before the commission for valuation in anno 1636. The pursuer answered, That the defence ought to be repelled; 1mo, Because Swinton standing then in the right of these teinds, had raised reduction and improbation of this decreet of valuation, against James Edmonston, as heir to Wolmet, and thereupon had obtained a decreet of certification, which is now produced; 2do, By articles betwixt Dankeith and Major Biggar produced, Dankeith accounts for a greater duty than this valuation, and so passes therefrom, and homologates the Major's right; 3tio, The decreet of valuation never took effect, there never having been payment made conform thereto, but tacks accepted by the same defenders, and duties paid by them of a greater quantity. The defender answered, That the certification could have no effect against the defenders, because it was only obtained against Wolmet's apparent heir, who had only the right of reversion, the wadsetter who was proprietor publickly infeft, and the said Jean Douglas liferenter by a public infeftment, never being called, who do now produce the decreet of valuation quarrelled; and as to the articles, they can import no homologation, because the article anent the teind bears only such a sum, without relating to the fifth of the rent, or to the price of the valued bolls. The pursuer replied, That the valuation having been obtained at the instance of Wolmet, and not of his wife, he might reduce the same by calling only Wolmet's heir, who had not only the reversion, but a back tack, and he was obliged to call no other, especially seeing they had no right to the teinds. The defender duplied, That the heritor has undoubtedly interest in the valuation, though he had no right to the teind, because it liquidates the teind, and liberates the stock of any further, and so hath the liferenter for the liferent right, especially she being publickly infeft; so that though the decreet was obtained at umquhile Wolmet's instance, yet he being denuded of the property by a, public infeftment of wadset, with his wife's liferent reserved therein, they could not be miskenned, and their right taken away by a process against Wolmet's apparent heir, who was denuded of the property, and who did not produce the decreet of valuation, and abide by it as a true deed.
The Lords sustained the defence upon the decreet of valuation; and found the certification could not take away the liferenter's interest in the valuation, she not being called; and found the articles to infer no homologation; but found the third member of the reply relevant, that tacks were taken by the defenders, and duty paid of a greater quantity since the valuation. See Tack.
