Scottish Court of Session Decisions

Subject_1 PROCESS.
Subject_2 SECT. XII.

Judicial Steps, how far under the Power of Parties, to be retracted, altered, or amended.

John Graham
v.
William Smith

Date: 27 November 1751
Case No. No 298b.

A person appearing in an action of sale, tho' not properly summoned, cannot afterwards object to the decree pronounced.

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John Graham, purchaser of Crowdieknows at a judicial sale, pursued William Smith as a possessor to remove.

Answered, He is a wadsetter, and entitled to retain his possession till redeemed.

Pleaded for the pursuer, The wadsetter was party to the decreet of ranking and sale, where he was ranked for the sum secured; and his father, who was originally called, and to whom he succeeded, deponed on the verity of the debt; having therefore taken himself to the debt, he cannot keep the possession.

Pleaded for the defender, The decreet of ranking is in absence as to him; Patrick Smith, his father, being a real creditor, ought to have been specially called, which was not done; the decreet shews he appeared in the improbation and produced, but did not appear in the ranking for his interest; only, he having another debt, a commission was granted for him to depone on the verity thereof; and having produced in the improbation, he had been advised to add, this was a true debt; Patrick Smith died, and the defender was never called, so the whole procedure is null.

On pointing out in the decreet of ranking a petition for a number of the creditors, amongst whose names in the title was that of this defender, which was sisting himself;

The Lords repelled the objections against the decreet of sale, and decerned in the removing.

Act. Ferguson Alt. R. Craigie. Clerk, Murray. Fol. Dic. v. 4. p. 150. D. Falconer, v. 2. No 236. p. 289. *** Kilkerran reports this case:

Where a ranking and sale is pursued of an estate, on part of which one has a wadset, the wadsetter may object to the sale of his wadset lands; which will be sustained, and all that can be sold will be the reversion; and the purchaser of the reversion cannot remove the wadsetter, without using the order of redemption in terms of the wadset. But should the wadsetter appear, and, without objecting to the sale, depone upon the verity of his debt, and crave and obtain a preference for his wadset-sum, in that case, the lands being sold, the purchaser may remove the wadsetter without using the order of redemption, which the wadsetter dispenses with, by his betaking himself to a preference as creditor in the wadset-money.

Accordingly, in the sale of the lands and estate of Crowdieknow, pursued by Sir William Maxwell of Springkell, against Bell of Crowdieknow, John Graham, now of Crowdieknow, became purchaser. Patrick Smith, who had a proper wadset of the lands of Netheralbie, part of the subject sold, redeemable on payment of 13,000 merks, having compeared and produced his wadset, and craved to be preferred for the said wadset-sum; and having deponed on the verity of his debt, was preferred accordingly. When thereafter a removing, at the instance of the purchaser, was pursued against William Smith the heir of the wadsetter, from the said wadset-lands, his defence was, That he could not be removed, in respect no order of redemption had been used against him, till which was done, and the redemption declared, he could not be dispossessed of his wadset.

The Lords “repelled the defence, and decerned in the removing.” See Ranking and Sale.

Kilkerran, (Ranking & Sale.). No 15. p. 474.