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Where a disposition had been made in 1699, of a piece of ground, in consideration of L. 700 Scots paid, with a clause of reversion, “That in case the granter should, on Martinmas-even 1704, pay or consign, in manner therein mentioned, the said sum of L. 700, the disponee should renounce his right to the said lands; but if it should happen that the disponer should fail to redeem, as aforesaid, the lands should remain with the disponee for ever,” but without any clause of requisition; on which disposition the disponee had possessed for upwards of 40 years, who nevertheless could not plead prescription in respect of the minority of the heirs of the disponer: In an action at the instance of the person now heir to the disponer, to have it found and declared, that it is still competent to him to redeem, the Lord Ordinary, “in respect that, at the date of the wadset, the rent of the lands wadsetted was no more than equal to the interest of the wadset sum, as also in respect there is no clause of requisition in the wadset, and that the wadsetter had continued so long in possession after the term appointed for the redemption; found the pursuer not now entitled to redeem, and assoilzied;” and on advising petition and answers, “the Lords adhered.”
The question turned on this, Whether it was a pledge, or a sale at an adequate price. If a pledge, then, although even in pacto legis commissoriæ, the redemption is barred by the lapse of 40 years (vide supra Nov. 10. 1738, Pollock against Storie, and which decision has been followed in all the like instances which have since occurred), yet here the minorities would have kept the redemption open; but if a sale at an adequate price, then the old act of sederunt applies, which declares irritancies of reversions in sales to be effectual according to the agreement of parties. And so the case was here considered to be, in respect no proof was offered by the pursuer, that, at the date of the wadset, the lands were of a higher rent than the annualrent of the sum, and that there was no clause of requisition, whereby it would have been a most unequal bargain, if the right of redemption had been to continue for 40 years.
Fol. Dic. v. 3. p. 337. Kilkerran, (Irritancy.) No 2. p. 297.
