Subject_1 ADJUDICATION and APPRISING. Subject_2 NATURE and EFFECT of this DILIGENCE.
The Duchess of Argyle v. M'Niel of Losset
Date: 31 January 1727 Case No. No 5.
In what cases a decreet of adjudication, without charge or infeftment, is an effectual diligence to carry a right of reversion.
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In a contract of wadset, Killellan dispones his lands to M'Niel of Losset, holding feu of the disponer, for yearly payment of 2000 merks of feu-duty; and the clause of reversion obliges the disponee to renounce his right of wadset, upon payment of 5000 merks. The Dutchess of Argyle, and M'Niel of Losset, having both of them led adjudications against Killellan the reverser, the question occured, “If a simple adjudication, without a charge or infeftment, was effectual to carry this right of reversion, so as to exclude all adjudications without year and day?”
And it was contended for the Duchess of Argyle, who had an adjudication with a charge against the superior, but not within year and day of Losset's, That her adjudication must be considered as the first effectual, with respect to the reverser's right, because the common debtor remaining still in the property of the land, burdened only with a pignus or wadset, he cannot be denuded, but by infeftment; and therefore, a simple adjudication, in this case, will convey no more than a simple disposition. Had, indeed, the lands been disponed, holding of the reverser's superior, nothing remaining with the disponer, but the naked faculty of redemption; this personal right might be carried by a simple disposition or adjudication without infeftment; but here the lands were disponed, holding of the reverser himself; his infeftment was not taken away by the wadsetter's, but both subsisted together; for a proof of which, when the wadset-right is renounced, the reverser will not need a new infeftment; whereas a reverser who has disponed his lands, to be holden of his superior, must have a letter of regress, and a new infeftment. All which is to shew, that the reversion here is real in the lands, and cannot be carried but by infeftment; and that therefore, with respect to this subject, more than lands, a bare adjudication without a charge or infeftment, cannot be reckoned an effectual diligence, in terms of the act 1661.
On the other hand, it was contended, That a decreet of adjudication, without charge or infeftment, is sufficient to carry this right of reversion. To make out which, the common debtor's right of superiority in the lands, was distinguished from his right of reversion; the first subsisting by infeftment, it was yielded, could only be transmitted by infeftment; the other arising from a personal obligement upon the wadsetter in the contract of wadset, was a mere personal faculty, transmissible by a simple assignation or adjudication: For here it was noticed, the disposition was in form of an absolute conveyance; Losset, the disponee, became thereby absolute proprietor of the lands holding of the disponer, and the right of redemption did not arise from any quality in the conveyance, but from the personal obligation upon the disponee, which he bound himself in by the contract. Where, indeed, the wadset is contrived in form of a qualified or conditional conveyance, consistent with the radical right of property in the person of the reverser, (see Lord Stair, tit. Wadsets, § 1.) to fall ipso facto upon payment or consignation of the wadset sum; there the reverser continuing in the radical right and property of the lands, his right of reversion cannot be carried otherwise than by infeftment; and that equally, whether he dispone the lands holding of his superior, or of himself: But, as is said, where the reversion is not a quality of the right, but a personal obligation upon the proprietor, the right arising therefrom cannot be other than personal, and transmissible as all other personal rights are.
Hence it was contended, the proper distinction is not betwixt wadsets holding of the reverser, and holding of the reverser's superior; but betwixt wadsets where the conveyance is qualified, and where it is absolute, with a personal clause of of redemption: In that case, the reverser remaining radical proprietor, needs no new infeftment when the wadset is extinguished; and his right of redemption being in consequence of his radical right of property, can only be carried by infeftment: In this case, the wadsetter is absolute and sole proprietor; and whoever has the right of redemption, must have the wadset conveyed to him, with new infeftment; which is the only way this case can be expedited, if that single instance be excepted, where the right of redemption is competent to the superior, who already standing infeft as superior, needs not a new infeftment as proprietor: And therefore, the reversion here being only a personal obligation upon the proprietor to denude, may be carried by an adjudication without infeftment, as well as by assignation.
‘The Lords found, That Losset's adjudication of the reversion of the wadset right, was sufficient to carry the same, without necessity of infeftment or charge against the superior; and therefore, preferable to posterior adjudications, with a charge against the superior not within year and day.’
Fol. Dic. v. 1. p. 14. Rem. Dec. v. 1. No 91. p. 179.
