Subject_1 ARRESTMENT. Subject_2 What Subjects Arrestable.
Major William Cuningham of Enterkine v. William Wemyss, Writer in Edinburgh
Date: 15 February 1758 Case No. No 57.
Wadset sum consigned, after an order of redemption used, but before decreet of declarator, found not arrestable.
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Robert Ludgate in Coldingham, in 1745, disponed certain subjects, lying in the town of Coldingham, to Robert Robertson and others, his creditors, jointly, their heirs and assignees, under this provision, “That the said lands shall be redeemable at any term betwixt and the term of Martinmas 1753 inclusive, upon premonition of sixty days, and payment making to them of a certain sum of money.”
In March 1751, Lieutenant-Colonel John Cuningham purchased this wadset-right from the said Robertson, &c. for a certain sum of money; and, of that date, they executed a conveyance of the subject in his favour, redeemable in terms of the disposition to them.
William Ludgate, son and heir to the said Robert Ludgate, the original reverser, at the term of Martinmas 1753, duly used an order of redemption; and having taken a proper instrument against Colonel Cuningham for not receiving the money in terms of the clause of redemption, consigned the wadset-sum in the hands of one Matthew Craig.
Major William Cuningham being creditor to the said Colonel John Cuningham, arrested the consigned sum in the hands of the said Matthew Craig; and William Wemyss, writer in Edinburgh, another creditor of Colonel Cuningham's, used arrestment in the hands of the said Matthew Craig, and likewise in the hands of William Ludgate the consigner.
Major Cuningham being advised, that the above-mentioned arrestments would be ineffectual, as the sum still remained heritable, no declarator of redemption having been obtained, although a summons of declarator had been raised in January 1755, procured from Colonel Cuningham, in February 1755, a disposition to the wad-set lands; and a competition having thereupon ensued upon a multiple-poinding raised by Craig, Major Cuningham contended, That the sum consigned not being moveable, could not be arrested; and that, therefore, he was preferable in virtue of his foresaid disposition from the Colonel; and offered to accept of the wadset-sum without the trouble of a declarator.
Pleaded for Mr Wemyss, the preferable arrester, A wadset-right is a mutual contract, by which the granter conveys an heritable subject, with this condition adjected, That when he uses the order stipulated, he shall again return to his right of property in the subject, and the wadsetter shall have right to the redemption-money. It is true, after offer of payment, or consignation made by the reverser, he may depart from the order of redemption, and thereby it becomes ineffectual; but if he proceed in his declarator, he is understood to have been reinstated in his right of property, from the instant he used the order agreed on; and the decreet of court is only declaratory of that right. Thus Lord Stair, lib. 2. tit. 10. § 19. says, “It is the order that constitutes the redemption; and the declarator but finds and declares it to be orderly proceeded, and decerns the wadsetter to denude himself conform thereto; and therefore, though the reversion be personal, excluding assignees, if that person once use the order, he may assign it, and dispone the lands as redeemed, and the assignee, at any time after his death, will have interest to declare.” And Sir George Mackenzie, in his title, Of redeemable rights, lays it down as a rule, “That, after an order of redemption is used, it may be assigned;” which shews plainly, that the consigned money is affectable by arrestment; which is confirmed by the opinions of Dirleton and Stuart, in express words, under the heads, Arrestment of conditional debts and Wadsets: Stuart's words in particular being, “So soon as the order is used for redeeming, it may be arrested; and the first arrester will be preferred.”
Answered for Major Cuningham, When a wadset, or sale under reversion, is constituted, the same remains, in the person of the wadsetter, an heritable right, until he accepts of the redemption-money, or until a declarator of redemption; and, in like manner, the redemption-money, which comes in place of the wadsetlands, is also heritable quoad the wadsetter, until he require or accept of the sum, or until decreet of declarator be obtained. The using the order of redemption, and consignation of the sum, by the reverser, can have no effect to change the nature of the right quoad the wadsetter. That can only be done by the wadsetter himself, or the interposition of a judge. It is only the declarator of redemption that makes the redeemed lands belong to the reverser, and makes the sum consigned moveable, and to descend to the wadsetter's executors. As therefore the sum in question is not moveable, no decreet of declarator having been obtained, it follows of course, that is not arrestable. Stair, lib. 3. tit. 1. § 37 says, “An arrestment being laid upon sums consigned for a redemption, was not found effectual till declarator of redemption pass, which only makes the sum moveable.” See also Craig, lib. 2. tit. 6.; Macdowal, lib. 3. tit. 1. § 35.; Decisions, 21st June 1626, Murray, (Durie, p. 203. voce Right in Security.); 22d February 1666, Lockhart, (No 38. p. 701.); 21st January 1673, Nicol, (Stair, v. 2. p. 152. voce Right in Security.); 8th February 1681, Dunbar. (Stair, v. 2. p. 856. voce Heritable and Moveable.)
The Lords found the sum not arrestable, and therefore preferred Major Cuningham upon his disposition.
Act. Wal. Steuart.Alt. Garden.
Fol. Dic. v. 3. p. 40. Fac. Col. No 102. p. 181.
