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Scottish Court of Session Decisions >>
Heckford v Ker. [1675] Mor 16529 (17 June 1675)
URL: http://www.bailii.org/scot/cases/ScotCS/1675/Mor3816529-022.html Cite as:
[1675] Mor 16529
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Mr. Hugh Ker having granted bond to —— Heckfords, for the sum of 1000 merks, and being obliged thereby to pay the said sum, with annual-rent, at Martinmas thereafter, and, for the creditors' surety, having wadset, by the said bond, ten roods of land, to be possessed for the annual-rent of the said sum, so long as the same should remain unpaid, the representatives of the said Mr. Hugh were pursued for £6, as the inlake whereof the rent of the land did come short of the annual-rent of the said sum, and for public burdens; who did allege, that the said right being a proper wadset, and the said lands being possessed by the creditor, the debtor was not liable either for annual-rent or public burdens.
The Lords found, That the bond being of the nature foresaid, and containing a proper wadset, so that if the duties of the lands had exceeded the annual-rent, the superplus would have belonged to the creditor entirely, and not been imputed in payment of the principal, the debtor was not liable either for inlake or public burdens; and though, in the beginning of the bond, the debtor was obliged to pay annual-rent, yet the payment of the same was qualified, and to be understood according to the whole tract of the bond, viz. that the duties should be allowed for payment of the annual-rent, and that the creditor should possess and have the use and antichresis of the land and rents thereof for his annual-rent, which is clearly a proper wadset.
Reporter, Newbyth.Clerk, Mr. John Hay.
Dirleton, No. 268. p. 129.
