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Scottish Court of Session Decisions >>
Clapperton v Ker. [1676] Mor 9221 (9 February 1676)
URL: http://www.bailii.org/scot/cases/ScotCS/1676/Mor2209221-076.html Cite as:
[1676] Mor 9221
Possession must be restored at the termination of the Right.
Clapperton v. Ker
Date: 9 February 1676 Case No. No 76.
Found in conformity with No 74. p. 9219.
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The right of a wadset being comprised, the compriser did require for the sum due upon the wadset, and pursued the representatives of the debtor. It was alleged for the defender, That he could not pay the money, unless the pursuer should put the defender in possession of the lands. It was answered, That the pursuer not having possession himself, and having loosed the wadset by requisition, he could not put the defender in possession; and the defender might have taken possession by his own right; and it was enough that he was content to renounce the wadset, especially seeing neither the pursuer nor his author had done any deed to put the defenders in worse case as to possession; and the possession was apprehended and still continued by an anterior compriser; and the pursuer had obtained a declarator, finding the said comprising to be satisfied and extinct, so that the defenders might easily recover possession.
The Lords, notwithstanding, found the allegeance relevant, and that the pursuers should put the defenders in possession.
Fol. Dic. v. 1. p. 599. Dirleton, No 330. p. 158.*** Stair reports this case:
George Clapperton, as having right to a wadset of the lands of Kippilaw, granted by Sir George Ramsay, wherein Ker of Sunderland-hall was cautioner in the requisition, pursues thereupon for payment of the sum. The defender alleged no process, until the pursuer denuded himself of the wadset-right, and return the granter of the wadset to the possession thereof. It was answered, That he was not obliged, unless by some deed of his the possession had been interverted; but much less where it appears not, that the granter of the wadset did put the wadsetter in possession. It was replied, That it was sufficient that the wadsetter or his successors had ever obtained possession by the wadset-right: Ita est, Torsonce, who apprised from the wadsetter, attained possession of the wadset-lands. It was duplied for the pursuer, That Torsonce having apprised the wadsetter's whole estate, did only promiscuously possess the whole for a time; and being satisfied by intromission, did cease, but the pursuer derives no right from him, but as a second appriser, from the wadsetter.
The Lords found, That if the granter of the wadset did put the wadsetter in possession, requisition could not be effectual till the possession were restored, unless the wadsetter had been excluded therefrom by a better right; but found that the first appriser's promiscuous and temporary possession did not oblige the second appriser to return that possession.
