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SCOTTISH_HoL_JURY_COURT

Page: 260↓

(1739) 1 Paton 260

REPORTS OF CASES ON APPEAL FROM SCOTLAND.

No. 51.

Sir John Home of Renton, Appellant

v.

Sir John Home of Manderston, Respondent

23d May 1739.

Subject_Wadset. — Right in security.—

Circumstances in which the right of reversion in a security of the nature of a wadset was found not to have expired by the mere lapse of time, although it had been declared in the agreement that the right of reversion “should cease on the running thereof.”

Sir John Home of Manderston, and the late Sir Robert Home of Renton, entered into a submission with regard to certain debts due by Sir Robert to Sir John, and affecting the estate of Renton. The arbiters found, inter alia, “that a considerable sum of money was still due by Sir Robert to Sir John, for payment whereof, and in lieu of whatever claims Sir John had upon the estate of Renton in any manner of way, they declared that Sir John had right, and was entitled to” certain lands, mentioned in the award, and decerned Sir Robert and his heirs “to grant a valid disposition to Sir John and his heirs,” and that under the following reversion, viz. “that upon payment of 90,000 merks Scots to Sir John or his heirs, by Sir Robert or his heirs, or consignation thereof in the hands of the treasurer of the city of Edinburgh for the time being, upon the premunition of sixty days preceding any term of Whitsunday or Martinmas, within ten years from and after the date of the said award, Sir John and his

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heirs should be bound and obliged to denude themselves of, and retrocess Sir Robert and his heirs to the said lands. Declaring that Sir John should not be accountable for the rents of the said lands during his possession and before redemption, and that the said ten years should expire, and the right of redemption cease on the running thereof, notwithstanding any supervening minority of the heirs of Sir Robert; and that the said Sir John's entry to, and possession of the said lands, should begin at Whitsunday then next for the year 1726. And until the said disposition, under the reversion above mentioned, should be granted and perfected by Sir Robert or his heirs, they decerned and ordained the apprisings, adjudications, dispositions, and other rights in the person of Sir John, to subsist and remain with him, as a security to him of the said lands, and of the said sum of 90,000 merks, for which the same are redeemable as aforesaid.” Sir Robert died soon after the date of this decree, and without having executed a disposition in terms of it. His eldest son, Sir Alexander, a minor, was served heir to him, and thereafter did, with consent of his guardians, give notice to Sir John, in terms of the award, to receive at the ensuing term of Whitsunday the aforesaid sum of 90,000 merks. At that term, however, the guardians insisted that it was not safe for them to pay the money, as they alleged that Sir John's estate was encumbered with debt, and that a variety of real diligence had been led against it. They, therefore, offered a bond instead of the money, but this was refused.

They then brought an action of declarator, to

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have it found that the aforesaid clause of redemption was sufficient to entitle Sir Alexander to redeem the lands.

Pending this suit, Sir Alexander died in minority. His brother, (the appellant,) also a minor, being served heir to him, did, with the consent of his guardians, revive the action, and prayed that he might be allowed to amend the libel, by adding the following conclusion: “That upon paying the money into the Court of Session the lands might be found redeemed, and the defender ordained to clear the lands of the incumbrances which he had made thereon, and to convey to the pursuer in terms of the award.”

It was objected, however, that the ten years had expired since the date of the decree, and that the clause of redemption was therefore void, and the Lord Ordinary, (11th February, 1738,) “Found the order of redemption void, and found the pursuer could not amend his libel by adding the conclusion above-mentioned, the ten years within which the lands were redeemable being elapsed, and assoilzied, leaving it to the pursuer to insist in any other process as accords of law.”

His Lordship afterwards “adhered, reserving to the pursuer, when a proper order of redemption was used, and declarator brought, to insist upon any reasons competent of the law, why his redemption is not excluded by the lapse of ten years.”

The Court adhered.

Sir John (the appellant) and his guardians then raised a new action, setting forth that he had been disabled from performing his part of the award, as the lands stood encumbered with the respondent's

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debts, and praying to have it found that he was entitled to redeem the lands, notwithstanding the lapse of the ten years, upon payment of the 90,000 merks into the Court of Session, subject to the direction of the Court.

On the report of the Lord Ordinary, the Court (2d February, 1739) “found that there was no place now for this declarator, and therefore assoilzied.”

Entered Feb. 22, 1738.

The appeal was brought from this interlocutor.

Pleaded for the Appellant:—A security of the nature of that which was given to the respondent is both in equity and by the law of Scotland redeemable, notwithstanding the specified term has elapsed, until a decree is obtained in an action of declarator that the term of redemption is expired.

In the circumstances of the case, the respondent's estate being encumbered with debts and real diligence, it would have been unsafe for the minor or his guardians to have paid the money, as it was not in the power of the respondent to grant a renunciation. It was thus in consequence of circumstances imputable to him, that the redemption was not made, and it would be against all equity to allow him to take such an advantage of the minor under colour of non-performance, when, in fact, the non-performance was owing to his own situation.

Pleaded for the Respondent:—By the decree pronounced in the former action, reserving liberty to the appellant “to insist upon reasons competent of the law why his redemption is not excluded by the lapse of ten years,” the right of redemption is made to depend upon his using a proper order of redemption, and as no such order has been

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made, the point now insisted on by the appellant is res judicata.

The case of the respondent is different from that of a common wadsetter, and entitles him to insist upon the strict performance of every form which was made incumbent on the debtor.

If the redemption money had been paid up or consigned, there would have been no difficulty in granting the renunciation, because the respondent would thereby have been enabled to pay all his debts, and to have cleared his estates from the diligences which affected them.

Judgment, May 23, 1739.

After hearing counsel, “It is ordered and adjudged that the interlocutor complained of in the said appeal be, and the same is hereby reversed; and it is hereby declared that, upon the particular circumstances of this case, the appellant is entitled to redeem the lands in question; and it is further ordered, that the said Lords of Session do give such directions, touching the said redemption and the terms thereof, and the reconveyance of the said estate, as shall be agreeable to justice and equity.”

Counsel: For Appellant, Ch. Areskine, W. Murray, A. Hume Campbell.
For Respondent, John Browning, Ch. Gordon.

1739