Click here to view a pdf copy of this documet : PDF Copy
Donald Neilson, then of Assint, did, anno 1613, grant a feu of the lands of Oldinny to John Maceanreoch and his heirs, for a yearly feu-duty of 13s. 4d. Scots; proviso, That John Maceanreoch should grant a letter of reversion, bearing the lands to be redeemable after 19 years, by payment or consignation of 1000 merks. John was infeft and put in possession; but, in the 1676, was violently turned out of possession by John Mackenzie, who having by this time acquired several adjudications upon the estate of Assint, was, by virtue of these titles, in possession of the estate. In the year 1730, Margaret Maceanreoch, heir to the wadsetter, was repossessed by authority of the Court of Session; and, about the same time, obtained a decreet against Kenneth Mackenzie, son to the said John, for 16,300 merks, as the supposed amount of the rents and profits of the wadset-lands, during the years the wadsetter was illegally kept out of possession.
In the ranking of the creditors of the said Kenneth Mackenzie, Macleod of Geanies, in right of the said Margaret Maceanreoch, insisted that the wadset could not be redeemed as originally upon the payment of the 1000 merks; but that the wadsetter is entitled to hold possession till the 16,300 merks be also paid. Answered for the creditors; Supposing this defence to be good against Mackenzie of Assint, it is certainly not good against creditors who have adjudged the estate from him; “which accordingly was found.”
The present case coincides with an eik to a reversion of a wadset. Such eik is good by paction against the original reverser or his heirs. The same holds even without paction. A reverser, when he redeems a wadset, is bound in equity, over and above the wadset-sum, to pay every farthing he is due the wadsetter upon any separate account; and the equitable defence of retention, calculated to lessen the number of processes, will preserve the wadsetter in possession till this piece of justice be done him. According to this rule, the defence insisted on for the wadsetter is undoubtedly good against Mackenzie of Assint. But will it be good against Assint's creditors, or against an onerous purchaser? Even an eik to a reversion protects only against the reverser, whose debt it is, and not against a purchaser, multo minus an ordinary debt. Retention is an equitable remedy, introduced to save multiplicity of processes; and there is neither equity nor expediency to sustain it against a purchaser.
