Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION. reported by JAMES BURNETT, LORD MONBODDO.

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M'leod of Genzies

Date: 8 November 1741

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[Elch., Nos. 5 and 6, Wadset.]

This was the case of a wadset which contained an assignation to the reverser, proceeding upon a narrative of love and favour, of the haill kains, customs, duties, casualties, during the life of the reverser, he paying yearly four chalders to the wadsetter. It was contended, 1mo, That this paction was usurious ; because, by the ordinary course of sale, that quantity of victual would yield more than the annualrent of the money for which the lands were wadset. This the Lords repelled ; because the value of the victual was very little above the annualrent of the money,—and the wadsetter was bound to pay the cess.

2do, It was contended that this wadset was improper: and therefore the wadsetter, if he entered to the possession, behoved to be accountable; for there is here a back-tack which is the characteristic of an improper wadset, by which the creditor does not take the hazard of the fruits of the land for the interest of his money ; and in this case, though the back-tack was only for a time, yet that did not alter the nature of the wadset, which, being once improper, could not afterwards become proper.

To this it was answered,—1mo, That this was no back-tack, but only a concession upon the part of the wadsetter, which the reverser might make use of or not as he thought proper; for he was not bound to enter into possession, and, if he did enter into possession, might relinquish when he pleased: whereas, by the nature of the tack, the tacksman is obliged to possess and to continue the possession all the time the tack lasts. 2do, Supposing it were a back-tack, yet it is only for a term of years, which may perhaps be very short; whereas, the characteristic of an improper wadset, is a back-tack during the time of the not-redemption. That shows manifestly the intention of parties to be, that the wadset shall be no more than a right in security ; whereas, when the tack is only for a time, it is doing no more than any proprietor would do with his lands.

N.B. This was the reasoning of Elchies, who seemed to allow, that if the wadset was once improper by a back-tack during the not-redemption, although the irritancy of this tack, for not paying the rent in two years, was incurred and declared, yet that would not alter the nature of the wadset, which, being improper in its original constitution, would still continue so.

The Lords found the wadset proper. Dissent. Arniston.