Scottish Court of Session Decisions

Subject_1 DECISIONS OF THE LORDS OF COUNSEL AND SESSION, COLLECTED BY SIR JAMES BURNETT, LORD MONBODDO.

Robertson
v.
Ross, &c Creditors of Easterfearn.

Date: 26 November 1751

Click here to view a pdf copy of this documet : PDF Copy

[Elch. No. 5, Heir-apparent.]

A Father had right to a wadset: the son, after his death, purchased the property or reversion, but neglected to make up titles to the wadset by service to his father; thereafter a creditor adjudged the lands from him, and another creditor after that adjudged upon a charge to enter heir to his father, who, as said, was in right of the wadset; the question was, which of these two creditors was preferable, and whether the last creditor had not an exclusive right on the wadset ? Upon this species facti the Lords unanimously determined this general point, that where a man has right to the property of an estate, and likewise to other collateral and subordinate rights, commonly called incumbrances, such as a wadset right, (which, though nominally a property, the Lords considered in this case as no other than an heritable bond,) infeftment of annualrent, or adjudication and chooses to make up his titles only to the paramount right, or right of property, neglecting the collateral rights, and leaving them, as in this case, in hæreditate jacente of the predecessor, it shall not be in the power of any creditor to rear up these rights so neglected against any other creditor or any other person come in right of the debtor. It was said by some of the Lords that a man in such circumstances had potentially in him all the other rights, though he only chose to complete his right to the property, (for so they considered the reversion in this case,) which being the nobler right swallowed up the rest. Others, and particularly Elchies, insisted upon the great inconveniences that might arise if such inferior rights might be reared up and made separate estates of, considering it is a very common practice for men to purchase in incumbrances in order to secure their estates, and then to let them lie in their charter-chests without ever thinking of making up titles to them. But this is an argument only from expediency and it must be confessed that the forms of the feudal right make a good deal of difficulty in this case, which in my apprehension can only be solved upon this principle, That a man having several rights in his person, and choosing to make up a title to any one of them, is thereby presumed to renounce and repudiate the rest; as if in this case, for example, he had renounced and discharged the wadset, or used an order of redemption against himself, which was hinted from the bench; but to this effect, not to be used by any creditor or taken up by any heir, but not to be so extinguished as that they could not be used to defend the right upon which the title is made up against any prior or preferable right.

N.B. The Lords, in this case, had no occasion to determine the question of the succession dividing and the principal right going to one heir and the incumbrances to another; but it is believed, if the case were happening, the Lords would find that the heir to the principal right upon which the titles were made up would carry all. (Vide Gray against Smith, 8th November 1751.)