Scottish Court of Session Decisions

Subject_1 WADSET.

The Relict of Mowat
v.
Gray and Mowat

Date: 28 November 1635
Case No. No. 10.

Competition between the relict of a wadsetter, and a singular successor.

Click here to view a pdf copy of this documet : PDF Copy

One Keith of Pittindrum having wadset the lands of —— to one Mowat, redeemable conform to the reversion granted thereupon, for 2,000 merks, and by virtue whereof he being in possession; thereafter this Mowat, by a base infeftment, gives the life-rent right thereof to his wife, to be holden of himself, and making relation to be done for implement of, and conform to their contract of marriage; after which right the said Mowat dispones the same lands to Mr. Rodger Mowat, who was his creditor, and had paid great debt for him, by a public infeftment, who sicklike was divers years in possession by virtue of the said public right; Thereafter Keith of Pittindrum dispones the said lands to the Earl Marshall, and pays the sum to the said Mr. Roger Mowat, who had the foresaid public right of the wadset redeemable, as said is, conform to the reversion, and obtains a voluntary renunciation of the said right, no order of redemption being ever used thereupon; and thereafter the Earl Marshal, and William Gray, to whom the Earl disponed the lands irredeemably, became in possession after the decease of ——— Mowat, his relict, by virtue of her preceding base right, claiming and pursuing, for the mails and duties of the lands; and a defence being proponed upon the renunciation made by the said Mr. Rodger, successor in her husband's public right, which was under reversion, and which she had confessed to be redeemed by his receipt of the money, and renunciation of the wadset, in favours of the heritor; which was lawful for him to do, seeing the heritor could know no other but his own wadsetter, he not having received, nor acknowleged the wife, by virtue of her base right; so that as the heritor might have paid the husband the money, and received his renunciation valiably, quo casu the wife's right would have ceased, so might he do to the singular successor; and the wife answering, that her infeftment being given, conform to a contract of marriage, her husband's possession behoved to be esteemed her possession, and this voluntary renunciation ought not to derogate to her right, except there had been an order of redemption used, and she warned to the order and declarator, that the money, instead of the land, might have been employed to her use;—the Lords sustained the exception, upon the preceding voluntary renunciation and reversion, and preferred the singular suceessor to the relict, in respect thereof and of his possession.

Act. Baird. Alt. Mowat. Durie, p. 779.