Supposing the intention of benefiting, in what cases Recompence due.
Bowie v. Corbet and Others
Date: 11 January 1679 Case No. No 9.
Liferenter's right of recompense for damage by want of her liferent. See Trail against Moodie, infra.
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Hamilton of Milton having wadset his lands for 10,000 merks, he did thereafter grant bond to Isobel Corbet his wife, bearing, That in lieu of the lands of her contract of marriage, he disponed to her an annualrent of 400 merks out of the wadset lands, and for her security assigned her to the reversion of the wadset. Upon this bond she was infeft; but thereafter, by a contract of wadset with Peter Johnston, who had right to the first wadset, and advanced 2000 merks more, whereupon the wadset was renewed to him, the wife was consenter, and the reversion is provided to Hamilton and, his wife, the longest liver of them two, and their heirs. Bowie apprised from the heir of Hamilton the right of reversion, and now pursues declarator, that the reversion so conceived could import no more to the wife but a faculty to redeem upon payment of the sum, that she might enjoy the profits of the land during her life, which she not having done, the faculty was extinct, and the sole reversion belongs to the pursuer, as come in place of the husband, who was fiar in the reversion. It was alleged for. Corbet of Hadgrey, who had right from the life-renter, That this declarator could only be sustained with the burden of Isobel Corbet his author's right, and that he, as her assignee, might redeem the wadset ad hunc effectum, that the wadset being the only middle impediment, hindering the effect of the liferenter's infeftment of annualrent, he might poind; the ground for all the years she was widow, by which he might apprise, or adjudge the ground right and property, the right of reversion, and all other rights competent to Hamilton, granter of the wadset; which adjudication being upon an infeftment of an annualrent, will be drawn back to the infeftment, and thereby will be preferred to Bowie the appriser's infeftment, against the common author, being after the infeftment of annualrent, as being a real right and debitum fundi. It was answered, That the liferenter, by consenting to the last wadset, for all right she had, did thereby pass from her prior annualrent, during the standing of the wadset, so that having died before the wadset was redeemed, her interest is extinct. It was replied, That the liferenter's consent did indeed restrict her right as to the wadsetter, but not as to her husband; and if she, or her executor, or assignee, were insisting for poinding of the ground upon her annualrent, she might thereupon adjudge the property, and right of reversion, whereupon they redeeming the wadset, they would possess the whole land, ay and while they were paid, not only of the sum in the wadset, but of her annualrent of 400 merks, during her life, after her husband's death.
Which the Lords sustained, and therefore declared Bowie's right to the reversion, but with the burden of the liferenter's annualrent, that thereby her assignee might by a poinding of the ground affect the reversion, and thereupon pay the wadset sum and might possess the land till they were both paid of the wadset sum, and of the wadsetter's annualrent.
