Hugh Macleod of Genies, v. Hugh Fraser of Lovat and His Creditors
Date: 9 March 1757 Case No. No. 42.
A proper wadsetter being dispossessed, his claim for the rents is only personal, and not real against the lands.
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John Macinreoch obtained, in the year 1630, a wadset of part of the lands of Assint, redeemable after nineteen years.
Kenneth Mackenzie, second son of Lord Seaforth, came to have right to the estate of Assint, in virtue of certain adjudications and apprisings; and in the year 1676, the wadsetter was forcibly turned out of possession of the wadset lands, and Kenneth Mackenzie immediately entered to the possession.
In the year 1730, the heir of the wadsetter obtained a decree of preference, as to the mails and duties, against the reverser Kenneth Mackenzie; in consequence of which she recovered the possession of the wadset lands in the year 1736, and then brought an action for the rents and profits of the lands during the period she and her predecessor had been forcibly excluded, from the year 1676 to the
year 1736, and conveyed her right to Hugh Malceod.
The creditors of Kenneth Mackenzie brought a ranking and sale of the estate of Assint. In this process Hugh Macleod insisted to be ranked as a preferable creditor, not only as to the property of the wadset lands, subject to redemption, but also for the rents and profits from the year 1676 to 1736.
It was admitted by the creditors: That the claim for the rents and profits was well founded, as a personal debt, against Kenneth Mackenzie, the proprietor of Assint; but they denied that it was a preferable debt affecting the wadset lands, in a competition with them.
For Hugh Macleod it was argued. That though the claim for the bygone rents of the wadset, lands is a personal debt, yet he ought to be found entitled to retention of the wadset lands, supposing an order of redemption used, until payment of these bygones. It was a breach of the contract of wadset, upon the part of Kenneth Mackenzie, to dispossess the wadsetter of the lands; and, of consequence, the wadsetter would have been entitled against him, the reverser, to retain the possession after an order of redemption, till the rents from which he was excluded were fully repaid. This defence must be equally good against the creditors of Assint, since their diligences can only carry the right of reversion, and they cannot be in a better case than the reverser.
If this wadset had been improper, the lands could not have been redeemed but upon payment of the interest of the wadset sum during the years of exclusion, as well as the principal; and the rents, in the case of a proper wadset, must be considered in the same light with the annual-rents in the case of an improper wadset; and therefore must be equally secured to the wadsetter by a right of retaining the lands.
Answered: The claim of a proper wadsetter dispossessed of the lands, is good against the person who dispossessed him, and received the rents, whether that violence was committed by the reverser or by a third party; but in both cases it is only a personal claim; because, by the nature of a proper wadset right, the rents are taken in place of the interest of the money, and the wadsetter runs all risks, and has a remedy at law for keeping and recovering possession of the rents. The case of an Improper wadsetter is different; the rents are not taken in place of the interest of the money; for the reverser is bound to uphold them; and therefore the interest of the money is a real debt against the estate, unless in so far as paid or extinguished by the rents received.
“The Lords adhered to the Lord Ordinary's interlocutor, finding Hugh Macleod preferable as to the property and possession of the wadset lands till redemption, subject to redemption in terms of the wadset right; but finding, that the intromissions had by the common debtor and his author, the reverser of the wadset right, with the rents and profits, while the wadsetter was kept out of possession, were not really secured, nor could affect or burden the clause of reversion in the wadset right; and therefore, that Hugh Macleod could only be ranked ultimo loco for these rents and profits.”
