An improper wadset may, by acts and deeds of the wadsetter, be converted into a proper one.
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Keir conveyed his lands of Bardrum in wadset to Veitch, redeemable within 20 years, on payment of 27,000 merks, Veitch at the same time granting a tack of the lands of Keir during the period of redemption for a rent corresponding to the interest of the wadset sum. Keir possessed the lands for some years till his death, when his children declining to represent him, Veitch obtained warrant from the Sheriff, to let the lands, which he accordingly did, though not at a public roup, yet for the highest rent that could be obtained for them. After all, however there was a deficiency in the rent of about £20 Sterling less than that contained in the back-tack to Keir, and therefore an annual short coming of the interest of the wadset sum to that amount.
Ayton having purchased the right of reversion from the grandson and representative of the original reverser, consigned the redemption money; and he, together with David Keir his author, brought action of declarator of redemption against the representative of Veitch, who refused to comply with the order of redemption, till the sums in which the rents had fallen short of the interest should be consigned with the redemption money.
Pleaded for the pursuers, that as the terms of reversion had no reference to this back-bond, these clauses cannot affect an onerous purchaser of the right of reversion; neither can they affect his author, for Veitch, by assuming full possession on the reverser's death, and letting the lands as proprietor, must be considered as a proper wadsetter, taking his chance of the rents for his interest. It is of no consequence that the wadset was originally an improper one, in consequence of the back-tack to the reverser; for the subsequent assumed possession by the wadsetter, and his letting the lands without any protest, to show that he did not mean thereby to hold the back-tack as voided, clearly converted the wadset into a proper one, so that there can be no claim now for short coming of interest.
The Lords found that the conduct of the wadsetter, in letting the lands for a term of years, not by public roup, and in taking no protest, was virtually passing from the back-tack granted to the original reverser, and that the wadset thereby became improper; and therefore assoilzied both the pursuers from the defender's claims, and decerned in the declarator of redemption. See Appendix.
