Scottish Court of Session Decisions

Subject_1 RIGHT in SECURITY.
Subject_2 SECT. II.

Real Security, after what manner loosed.

Murray
v.
Dishington and Scot

Date: 21 June 1626
Case No. No 8.

Money consigned in the order of redemption of a wadset, was not found moveable, because the order might be passed from, or might not be sustained.

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Sir John Murray of Philiphaugh having paid, as cautioner for Sir Thomas Dishington, some sums of money, for his relief thereof he arrested in Sir Willim Scott's hand some monies addebted by the said Sir William to the said Sir Thomas, as resting of the price of the lands of Ardross, and upon the arrestment pursues Sir William to make the same furthcoming to him. The money was alleged by Sir William and Sir Thomas defenders, not to be subject to arrestment, seeing it was immoveable, being employed upon land to the said Sir Thomas his behoof, to whom the said Sir William had given charter and sasine for his security of the said money. It was answered by the pursuer, that that infeftment was under reversion, and that Sir William Scot had used an order of redemption, and made consignation of the money, whereupon the lands were redeemable; likeas, after the consignation, he had apprehended possession of the wadset lands, the same being before that order of redemption possessed by the said Sir Thomas himself; and the money being consigned, became moveable, and was arrestable after the said consignation. Notwithstanding of this reply, the money was found not to be moveable, nor subject to arrestment, albeit that the preceding order was used, and the money consigned before the arrestment, except that after either decreet of redemption had followed upon that order, or else that the wadsetter had renounced and granted the lands lawfully redeemed; and the Lords found, that without a grant of redemption, or a lawful sentence, the money became not moveable, nor subject to arrestment as said is;—albeit it was also replied, that this tended greatly to the prejudice of true and lawful creditors, who by the collusion betwixt these parties being conjunct, viz. father-in-law and good-son they might make a redemption at their pleasure, and use it, or not use it as they found expedient, which could not be known to the creditor; likeas that collusion appeared the more probable in this case, where after the consignation, the consigner acquired real possession of a redeemed lands, which he had not before;—which answer was not respected as said is, except positive it had been alleged, that there was either a lawful grant of redemption, or a sentence, seeing either the Consigner might pass from from the order, or the order might not be sustained by the Lords;—in either of the which cases, the money returned to the nature again wherein it was before the order; for reversions are counted among things immoveable, whereof no disposition can be made upon death-bed; but after the declarator, the money which before declarator is reputed also immoveable, becomes then to be moveable, and pertains to the executors of the defunct, and not to his heir;—and so affirms Craig, lib. 2. Feud. fol. 60, but in the same second book, fol. 251, and 252*, he says, that if any man die in the wadset of land that is under reversion, the land being redeemed, the wadsetter's wife will have the use of her third of that money, whereupon it was redeemable, upon caution to make it forthcoming to the heir after her decease; but if any tacks be after the redemption, she will have no part thereof, but the same pertain only to the heir; by the which it would appear rather that the money is not moveable, seeing the relict hath the liferent of her third thereof; but it may be answered, that the redemption there, is made after the husband's decease.

In this same process, the Lords found, that a sum appointed to be paid by the debtor to the creditor, (as Sir William was obliged in this case to Sir Thomas) where the debtor was obliged to pay the sum to his creditor, to the effect the same might be employed by the creditor upon land, for warrandice of the land bought by him, who was not obliged for the money to him to whom it was obliged to be paid, yet notwithstanding of that destination, it remained moveable, and might be arrested by his creditor, to whom the money was obliged to be paid, where the money was not employed upon land before the arrestment, conform to that destination, seeing the party who was obliged to

* See L. 2. Dieg. 6. De Reversionibus.

pay, was simply obliged, and was not subject in any heritable condition or obligation, nor holden thereby to pay annual, but when the payment was made either to the party to whom he was bound, or to his creditor artester, or any other. So the Lords found it was affected with the same condition, and ought to be employed upon land for the parties' warrandice; and thereafter found, that this arrester, for his debt due to him, had right to the sum as Sir Thomas had, and might seek the same, but that he ought to employ it upon land for warrandice to Sir William, conform to the destination and condition of his bond.

Act. Lermonth & Cunningham. Alt. Stuart & Nicolson. Clerk, Gibson. Fol. Dic. v. 4. p. 253. Durie, p. 203.