Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR PETER WEDDERBURN, LORD GOSFORD.

Bailie Boyd
v.
Bailie Justice

Date: 28 November 1671

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Bailie Boyd, pursuing for maills and duties of the lands of Crichton, as being infeft upon a comprising of the said lands from the heirs of Dr Scott, who had a wadset thereof, and by virtue thereof had been in possession;—it was alleged for Bailie Justice, That he was infeft in the said lands upon a comprising led against Ludovick Keir, granter of the wadset to Dr Scott, and so ought to be preferred; because Dr Scott's wadset was extinguished, in so far as his wadset, being affected with a back-tack, for payment of the annualrent of the sums lent upon the wadset, bearing an irritant clause, without any declarator obtained thereupon, he did enter to the possession of the whole lands, and did intromit with the rents thereof, which did amount to as much as the whole sums due upon the wadset, both principal and annualrents; which was offered to be proven.

The Lords did prefer Bailie Boyd in hoc judicio possessorio; and found, That an annualrenter or a wadsetter, with a back-tack, being in possession, that, until a decreet be obtained against him, finding that they are debtors, by intromission, with as much as will satisfy the principal sums, and thereby their right extinguished by compensation,—that a singular successor, by disposition or comprising, may, by virtue of their right, possess; and that an allegeance of further intromission, being after they were denuded of the lands, will not meet a singular successor; but, if the wadsetter himself, who had been in possession, had been compearing, it is thought the allegeance could not have been sustained against him.

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