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Scottish Court of Session Decisions >>
Lord Lee v Porteous. [1666] Mor 15241 (00 January 1666)
URL: http://www.bailii.org/scot/cases/ScotCS/1666/Mor3515241-116.html Cite as:
[1666] Mor 15241
A tack to take place after redemption of a wadset found null.
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In anno 1612, John Smeitoun of that ilk wadset the lands of Tintoside to Thomas Porteous, under reversion of 2,000 merks, and a three years tack after the loosing, for payment of 100 merks yearly. The Barony of Smeitoun, with the right of this reversion, comes in the person of the Laird of Lamingtoun, who dispones the same to the Lord Lee, who uses an order of redemption, and pursues a declarator, having consigned the 2,000 merks, and produced the same at the Bar. It was alleged for the defender, That there could be no declarator, unless a three years tack were also produced conform to the reversion. Answered, That by the 19th Act, 6th Parl. King James II. it is statuted, That tacks of wadset lands set after redemption, for half meal, or nearly, should not be kept, unless they were set for the very meal or worth of the lands, or nearly the same; but so it is, that this tack is appointed to be set for 100 merks, the lands being worth 300 merks or nearly ; and the time of the wadset, when the money was at ten per cent, they could not be less than the annual-rent of the money then lent, which was 2,000 merks, and consequently they behoved to be at least 200 merks yearly, and therefore the tack is null; 2do, By the late act of Parliament betwixt debtor and creditor, it is appointed, that the creditor having a proper wadset, and getting security for the annual-rent during the not redemption, he shall either quit the possession, or otherwise if he please to possess, he shall be comptable for the superplus duties more than pays the ordinary annual-rent; and therefore, when the creditor is, by redemption, paid of his principal sum, so that no more annual-rent is to be due, he should have no more use nor advantage of the lands and yearly duties thereof; and therefore a paritate rationis, the tack becomes null. To the first it was replied, That the act of Parliament has been in continual desuetude, and tacks of this nature, after the loosing, were always kept and consigned the time of the redemption, as may be instructed in divers cases. It was duplied, That where the law stands clear, no desuetude can be alleged against the same, unless it can be made appear, that this objection has been made against such tacks, and has been repelled Answered, That such tacks were never controverted, and so never objected against; and who can know after so long a time, whether or not objections were founded against the said act, and what the reason has been to repel them, if they have been proponed; whether the act was interpreted to extend only to wadsets and tacks dated before the act, and not to after wadsets and transactions? To the second, answered, That the act betwixt debtor and creditor speaks nothing of the case of a tack after loosing, and so cannot be extended a paritate rationis.
The Lords found the tack null upon the act King James the Second, though some were of the judgment it should have been found not upon that act, but upon the late act betwixt debtor and creditor.
