Scottish Court of Session Decisions

Subject_1 REDEMPTION.

James Watson, and James Nicolson of Tabroun, late Dean of Guild of Edinburgh,
v.
Irvine of Drum

Date: 5 January 1698
Case No. No 60.

Who must be premonished.

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Mersington reported James Watson, pointer, and, James Nicolson of Trabroun, late Dean of Guild of Edinburgh, against Irvine of Drum. These was a wadset of the lands of Balskevie, granted by Drum to Forbes of Tilliegreig, which, by progress, comes to Watson the printer, who is infeft there base, in 1677, and inhibits Forbes, his author, on the warrandice of his disposition, in 1678. After this, Drum enters into a transaction, with Forbes, and obtains his renunciation of the wadset, which is duly registrated. Watson pursuing on his right, Drum defends, that the wadset is extinct by the renunciation given him by Forbes Watson's author. Answered, No respect thereto, because long posterior, not only to my infeftment, but likewise to my inhibition against Watson. Replied, Neither of these could put Drum, the reverser, in mala fide; for 1mo, The sasine on the wadset, in Wason's person, was base, and never clad with possession; and for the inhibition, it was not intimated to Drum in terms of the act of sederunt 1680; and so there was nothing to hinder Drum, the reverser, to take a renunciation from Forbes, the first wadsetter, in 1686, being six years after the act of sederunt was made. Duplied, Watson could not obtain the possession, because his author's relict, liferenting the lands, debarred him; but this was sufficient to clothe his right with possession, seeing he bruiked per usufructuariam. See 13th February 1624, Sinclair contra Sinclair, voce Solidum Et Pro Rata; and 2d July 1624 Hamilton contra Tenants, see Appendix. Triplied, The, liferentrix's possession could never clothe Watson's right with possession; for that were to induce a fictio fictionis, which law reprobates; for, 1mo, Her possession behoved to be construed the fiar's possession, and then the fiar's possession must be extended to be Watson's, his assignees possession, which were a double fiction, The Lords considered the reverser paid the money, redeemed his own lands, and accepted the renunciation, by virtue of obligements long prior to the inhibition, and so was not concerned therein, nor any way in mala fide, unless the method of the act of sederunt had been followed by the wadsetter's creditors intimating his inhibition to the reverser, that he should not pay nor redeem till he were called; and therefore found Drum was not in mala fide, neither by the inhibition, nor sasine, neither of which he was obliged to take notice of, though the liferentrix possessed; and for these reasons sustained the renunciation. And the Lords have oft found base infeftments granted by wadsetters do not hinder redemption, 28th November 1635, the Relict of Mowat against Cray, voce Wadset; and 27th July 1665, Hamilton against Tenants, Ibidem; yet Durie has a case, where a right was sustained, notwithstanding of a redemption, 5th March 1630, Campbell and Orr against Salmond, See Appendix, in the case of a gratuitous disposition to a daughter, redeemable on a 40 shilling piece.

Fol. Dic. v. 2. p. 325. Fountainhall, v. 1. p. 808.