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Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
John Menzies v. Sir James Oswald of Fingleton
Date: 20 January 1698
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In the competition upon Carberrie, betwixt Mr John Menzies, advocate, and Sir James Oswald of Fingleton, Mr John had right to an improper wadset affected with a back-tack. Sir James had a posterior infeftment of annualrent. There was no doubt but the principal sum in the wadset was preferable; but, there being several years' back-duties resting, the debate arose, Whether they had any preference, or were only personal against the reverser and back-tacksman. Sir James contended,—His annualrents were debitum fundi, and if he adjudged for them they would be drawn back ad suam causam; which privilege the back-tack duties could not claim; for a singular successor would be only obliged to pay them during the years of his own possession, but not preceding. Answered,—They are a plain burden upon the reversion, so that neither the debtor, nor any coming in his right, can redeem without paying the bygones; and the remedy for making them real is by raising a declarator of the irritancy of the back-tack through the not timeous payment, that so the wadsetter may attain the natural possession; which he did: and, though the sale and roup of the lands intervened before he obtained his decreet, yet the price, as surrogatum, must come in place of the lands, and be liable to him for his back-tack duties.
The Lords found, The wadsetter having intented his declarator of the incurring the back-tack, he was preferable for his bygone tack-duties as well as for his principal sum; and that after that pursuit they were not merely personal.
