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Scottish Court of Session Decisions >>
James Hoge in Edinburgh v James Hoge in Dalkeith. [1667] Mor 13464 (2 January 1667)
URL: http://www.bailii.org/scot/cases/ScotCS/1667/Mor3113464-044.html Cite as:
[1667] Mor 13464
Redemption sustained upon consignation of a liquid debt due by the wadsetter to the revetser.
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James Hoge in Edinburgh pursues a declarator of redemption against James Hoge in Dalkeith, who alleged absolvitor, because the whole sum contained in the reversion was not consigned. It was answered, There was consigned the equivalent, viz. a decreet against the defender for a liquid sum which behoved to compense. It was answered, That reversions being strictissimi juris, compensations are not to be admitted therein; otherwise wadsetters may be much prejudged by taking assignations from their creditors, and consigning the same and frustrating them of their monies which they had designed for other creditors and other uses. It was answered, That this was no extrinsic compensation, but a decreet founded upon an article contained in the contract of wadset;
Upon which consideration the Lords sustained the order and declared.
Fol. Dic. v. 2. p. 325. Stair, v. 1. p. 419.*** Newbyth reports this case:
1667. January 12.—James Hoge in Dalkeith having, in anno 1653, given a proper wadset of his house in Edinburgh, to James Hoge in Edinburgh, under reversion of 3000 merks; the said James Hoge in Edinburgh, by the said contract of wadset, is obliged to pay to the said Hoge in Dalkeith L. 100 yearly, in regard the rent of his house was better than the annualrent of 3000 merks; and in regard the said James Hoge in Edinburgh made no payment of the said L. 100 yearly from the date of the contract to Whitsunday 1663, therefore the said James Hoge in Dalkeith obtained decreet against him for payment thereof; and at Whitsunday last pursues an order of redemption against the said James Hoge in Edinburgh, and consigns the foresaid decreet and discharge thereof, with the superplus of the money that remained unpaid of the 3000 merks; and now pursues a declarator for the order of redemption.
The Lords sustained the order of redemption, bearing the consignation of the decreet pro tanto; albeit it was alleged, That the order could not be sustained unless the whole money had been actually consigned conform to the contract; which the Lords found not needful in this case, the decreet being for the superplus of the mails of the wadset lands more than paid the annualrent of the money and so is accessory to the wadset and redemption.
