Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION. reported by ALEXANDER TAIT, CLERK OF SESSION, one of the reporters for the faculty.
Subject_2 WADSET.

Edmonstone
v.
Tweeddale

1772.

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Tweeddale, upon a narrative of his being debtor to Edmonstone in the sum of L.49 sterling; therefore, for payment of said sum and annualrents, he sold to Edmonstone, his heirs and assignees, heritably, but under redemption, the lands of, redeemable from the said James Edmonstone, and his

foresaids, by payment of the foresaid sum. The disposition contained an assignation to the rents in all time thereafter until payment of the sums before mentioned; and it did not limit the reversion to any term. After the possessing the subject for some time, Edmonstone pursued Tweeddale for payment, and insisted that the deed was a wadset, which entitled the creditor to redemand his money,—a sale under a perpetual reversion being an absurdity in terms, and truly resolving into a proper wadset, being impossible to be converted into a right of property, but remaining a right in security, which is plainly a right of wadset for ever. Tweeddale on the other hand insisted that it was a sale.

“The Lords found, That, by the conception of the disposition in question, and of the said writing relative thereto, the said disposition was granted by the defender, and accepted by the pursuer in solutum of the debt; but redeemable upon payment of the principal sum, interest, and expenses, being recovered by intromission with the rents, or payment being made by the defender.”

A wadset may be constituted without containing an express clause of requisition, or even without mentioning the word wadset in græmio of the deed, provided that from other clauses it sufficiently appears that such deed was intended. Upon this ground it was, that the judgment of the Court proceeded in the case of Scotstarvet against The Earl of Balcarras, decided 1762.