Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 I sat in the Outer-House this week.
Thomas Nicol v. Park of Foulfordlies
Date: 12 March 1707
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Hamilton of Bancrief, as heritor of Nethermoninet in the Merse, grants a wadset out of it to Mr John Paip in 1652, redeemable for 3000 merks, containing a back-bond and irritancy, in case two years' annualrent should run in the third unpaid. Mr James Cheyn of Tillibin acquires the right of reversion, and by progress it comes to Thomas Nicol. The wadset, after several transmissions, is at last acquired by Park of Foulfordlies. Nicol raises against him a reduction, improbation, and declarator, That, he being accountable for the su-perplus duties of the land more than paid him the annualrent of his money, his superintromission must be ascribed in sortem, to extinguish his principal sum; and that, after count and reckoning, any part of it that remained unpaid he was willing to pay.
Alleged for Foulfordlies the wadsetter,—That he cannot be liable to count for the superplus rents of the lands more than the annualrent of his money, because he was bona fide possessor; in so far as, lmo, He was pursued at the instance of this same Thomas Nicol, before the Sheriff of Berwick, to remove, and was assoilyied, which was sufficient to found and sustain his bona fides. 2do, Though it was originally an improper wadset, yet it bore a clause, That, if the non-payment of three terms' annualrent ran together unpaid, the back-tack should expire, and be null, ipso jure, by way of exception, without need of a declarator, and he should enter to the possession of the whole lands; but, ha est, the irritancy was ipso facto incurred, and the reverser, who granted the wadset, thereupon ceded the possession; which is a sufficient colourable title for him to lucrate the bygone rents, without being accountable. 3tio, The irritancy of the back-tack being incurred, it brought it precisely to the case of a proper wadset, which, by the 62d Act Parliament 1661, is made unaccountable, unless they offer caution, and you refuse to cede your possession.
Answered for Nicol, the pursuer, to the first,—The sheriff's decreet can never be the foundation of your bona fides, but rather evinces a collusive design; for the absolviture proceeded because there was no title produced for the pursuer to the lands; and he being minor, it cannot prejudge him that his tutor's factor used a warning, seeing, in the removing, he produced nothing to instruct that his pupil had any right to the land. To the second, There are no clauses more odious in law than pacta legis commissoricc in pignoribus; and they can never take effect till there be a decreet of declarator obtained thereupon, where I would have got a competent time to purge the irritancy; and his ceding the possession signifies nothing, for he was, long before, denuded of the reversion. To the third, To transfuse a wadset under a back-tack to a proper wadset, is to change and alter the nature of rights toto ccelo different, and you have acknowledged yourself to be subject to account: in the transmission of the rights it is expressly provided that you shall relieve the disponer of the surplus rents.
The Lords repelled the defences, and found no bona fides in the case; and ordained him to account for the excresce, allowing all his deductions as accords. My Lord President thought, in those cases where the rent did but in a small matter exceed the annualrent of the wadset sum, it was hard to expose the wadsetter to a tedious account; but here the excresce was more than £40 by year, and the reverser had paid all the public burdens.
