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Subject_1 HERITABLE and MOVEABLE. Subject_2 SECT. XXI.
Effect of Decree, and of Consignation.
Dunbar v. M'Kenzie
Date: 8 February 1681 Case No. No 120.
The sum of a wadset found to belong to the heir of the wadsetter, he not having accepted of the sum during his life, although consigned.
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The Laird of Dunbeath having right by a wadset to the lands of Rarighies, whereof umquhile Mr Thomas M'Kenzie had a right of reversion, and did thereon use an order of redemption, and consigned the sum of 10,000 merks in the hands of Hugh Hamilton Bailie of Edinburgh, which he again uplifted himself; Dunbar of Hemprigs being executor to Dunbeath, and having confirmed the said sum, obtained decreet against Mr Thomas M'Kenzie in anno 1650 for payment of the sum; and now John Dunbar of Hemprigs, as executor to his father, pursues Mr John M'Kenzie, as representing his father, for payment of the sum; who alleged absolvitor, because there having no declarator of redemption followed upon the consignation, and Dunbeath never having accepted the consignation, nor insisted for uplifting of the sum, but continued to possess the wadset lands till his death, the sum of the wadset could not become moveable and fall to Dunbeath's executor, without his own deed, or the sentence of the Lords, or a decreet of declarator; and it could not be in the power of the debtor or reverser, to make Dunbeath's sums, which he had made heritable to descend to his heir, become moveable, to fall to his executor; and therefore though the defender were insisting in a declarator of redemption upon the consignation, the consigned sum could only belong to Dunbeath's heirs, who only could renounce the wadset, and not to his executor; and therefore the defender is not obliged to pay the consigned sum, but may, and doth pass from the order.
The Lords found the defender not obliged to re-produce the sum, or to insist in the declarator; and found, that if he did insist, that the sum would fall to Dunbeath's heir, and not to his executor, and that it is not in the case of the price of land due by a contract, not perfected in the disponer's time, which may belong to the disponer's executor, though the disposition must be perfected by his heirs, it being by the disponer's own deed, that takes the price as a moveable sum, and thereby preferring his executor to his heir.
