A reverser may insist in a declarator of redemption, not withstanding an order for redeeming voluntarily has been agreed on.
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The lands of Balligown had been granted in wadset to James Campbell and his wife; whom failing, to the heir of James Campbell; redeemable at the first term of Candlemas after the decease of the original wadsetters, or at the end of every nine or nineteen years thereafter.
The order of redemption prescribed was,—by premonishing the wadsetter sixty days before the term,—by an offer of the money at a particular parish-church,—or, in case of the wadsetter's not appearing to receive the wadset-sums, by consignation in the hands of certain persons.
An opportunity of recovering the lands having occurred by the death of the original wadsetters, Neil Campbell, the reverser, executed, for this purpose, a summons against Patrick Campbell, who had succeeded to the wadset-right. After reciting the conditions of the bargain, as before stated, it concluded, that the citation of the wadsetter should be held equivalent to premonition; an offer of the wadset-sums at the bar of the Court of Session, to consignation; and that these things being so done, the lands should be declared redeemed, &c.
Pleaded in defence: In the redemption of lands, the method agreed on by the parties should be exactly pursued. Hence it has been understood by all our lawyers, that the voluntary and extrajudicial form of redeeming ought to be tried before resorting to that which is litigious and compulsatory; the latter being only calculated to carry into effect, by authority of law, a right which has been before fully perfected;, act 1592, C. 136; Craig, Lib. 2. Dieg. 6. p. 164,—168; Spottiswoode, voce Redemption; Balfour, p. 445, 447, 453. 458; 15th June 1556, John Sempill against Houston; 15th Februaary 1562, Laird of Kinnaird, (See Appendix); Stair, B. 2. Tit. 10. § 16, 19; Bankton, Lib 2. Tit. 10. § 24; Erskine, B. 2. Tit. 8. § 17.
Answered for the pursuer: The forms of redemption prescribed in contracts of wadset were introduced in favour of the reverser, that he might not be under a necessity of following out his rights in courts of law. Appearing to be attended with little expense, they were generally practised for many years; and it was only where they had proved ineffectual for obtaining restitution that the reverser thought of using judicial measures.
But it has been since found, on account of the many troublesome formalities requisite in that method of procedure, that the remedy by action of declarator is much the surest, as well as the least expensive one. And since, by stipulating an opportunity of voluntary redemption, the reverser cannot be understood to have renounced any right formerly competent to him, nothing surely hinders him from taking, in such a case, the same measures which would have been proper if a special order of redemption had not been mentioned. 18th February 1762, Campbell and Others contra Stewarts. (Not reported.)
The production of a missive letter from the defender, whereby he agreed to renounce his security, rendered a determination of the point of law unnecessary. The Judges, however, expressed their opinion, that the proceedings on the part of the pursuer were regular and competent.
“The Lords repelled the defences, and decerned in the declarator.”
Lord Reporter, Alva.Act. M. Ross.Alt. Hume.Clerk, Home.
Fac. Coll. No. 267. p. 414.
