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Scottish Court of Session Decisions >>
Airdoch v William Paton. [1681] Mor 16531 (20 December 1681)
URL: http://www.bailii.org/scot/cases/ScotCS/1681/Mor3816531-024.html Cite as:
[1681] Mor 16531
Wadsetters may acquire the right of reversion without communication.
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Dr. Paton having a wadset of the lands of Panholls from one Grahame, redeemable upon payment of 14,000 merks, and, in case of not-redemption at Whitsunday 1657, the wadset was to expire upon the Doctor's paying in 5500 merks to Grahame, which was declared to be the full worth of the reversion. In anno 1659, he disponed the lands irredeemably in trust to Airdoch, his brother-in-law. The act debtor and creditor 1661, prorogated the legal of wadsets for the space of five years. After Airdoch's death, his son and his tutors, before they denuded of the trust, acquired the right of Grahame's reversion, who had used an order debito tempore, and insisted in the redemption of the wadset.
Alleged for Dr. Paton's heir: That it was contra bonam fidem to acquire the reversion in prejudice of the exuberant trust granted to Airdoch his uncle; and the Lords found, that a gift of forfeiture acquired by the pursuer could only be effectual to him for what he paid for it in respect of the trust; and a pari no more can be required for the reversion; 2do, Esto there had been no trust, the warrandice could only subsist for damage and interest, which can only be extended to what was paid for the reversion, and that Paton was willing to allow to Airdoch; 3tio, The contract with Grahame containing a liquidation of the reversion, as the full price thereof, the failzie to redeem at Whitsunday 1657 was not purgeable; for this was not the case of pactum legis commissoriæ, but a vendition of the reversion for a further sum than the wadset was granted for. As to my Lord Tullibiardine's case, there was a wadset ab initio; and the paying in a further price for the reversion was in a posterior deed, wherefore the Lords found the not-redemption purgeable; whereas here the liquidation of the reversion in the first contract, made it debord from a regular wadset, and resolve in a vendition, with a conventional retraction.
The Lords thought not the difference material betwixt a reversion liquidated in the first contract, and one liquidated by a posterior deed; nor did they determine singly upon the point of trust, which was narrow, to continue the effect thereof in the person of the heir who acquired the reversion, the trust being personal quoad fidem et diligentiam; but also determined upon the general head of damage above urged, as if there had been no trust, and waved other points; but the Lords found, That wadsetters might acquire the right of reversion without communication. But here the heritable right was disponed irredeemably.
