Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION. Collected By JAMES BURNETT, LORD MONBODDO.

Sinclair of Freswick
v.
Murray of Clarden

Date: 9 December 1741

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[Kilk., No. 1, Wadset.]

This was a question about the redemption of a wadset. The wadsetter had disponed a considerable part of the wadset lands, and of the remainder that continued in his hands the reverser assigned the reversion to a third party, who premonished the wadsetter, and consigned a certain sum as his proportion of the redemption money, together with a bond for whatever more should be found due. Upon this order of redemption, he pursues a declarator.

It was objected, That a wadset could not be redeemed in part without the consent of the wadsetter, no more than a debt could be paid in part invito creditore. Answered, That all the wadset lands he had a title to were offered to be redeemed ; so that, with respect to him, it was no partial payment, but a payment of all he could ask or crave.

Replied, That, though the wadsetter had divided the wadset, yet he had not divided, nor consented to the division of the reversion ; therefore, as, by the contract, the reverser was obliged to consign the whole sum before he could redeem, and as this benefit was not renounced by this wadsetter, or any of the purchasers from him, the reverser must still follow the same method, and cannot pretend to redeem by parcels. And as he cannot redeem by consignation of the part, so neither can he redeem by consignation of the whole; because, having only title to a part of the reversion, he cannot redeem the whole. The consequence of which is, that, in the present circumstances, he cannot redeem at all, till he acquire the rest of the reversion, which gives him a title to redeem the whole ; upon which he should premonish all the partial wadsetters to receive their respective sums, and then consign the whole. Which the Lords sustained.