Scottish Court of Session Decisions

Subject_1 IMPLIED DISCHARGE and RENUNCIATION.
Subject_2 SECT. IX.

Effect of a Charter of Confirmation.

Lord Chancellor
v.
Brown

Date: 15 February 1686
Case No. No 62.

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A wadset being granted, to be held a me et de me, containing a back-tack to the reverser for a duty equivalent to the interest of the money; the King's confirmation of the wadset was found not to secure the back-tack, in prejudice of the ward which arose upon the wadsetter's death.

Fol. Dic. v. 1. p. 435.

*** See this case by Harcarse, No 8. p. 3012.

*** Sir P. Home reports the same case:

1688. February.

George Wauchop of Cleghorn having granted a wadset to Robert Brown stationer of the lands of Cleghorn, which held ward of the King, for 9000 merks affected with a back-tack for payment of the annualrent of the same; and Robert Brown being deceased, and the Earl of Perth, Lord High Chancellor, having obtained a gift of all wards falling for several years, having pursued a declarator of ward against Charles Brown the wadsetter's apparent heir; alleged for the defender, That albeit his father was infeft, to be holden a me et de me, and thereafter the wadset was confirmed by the King, yet it being but the confirmation of a base infeftment, the effect of it was only to secure against forefaulture, but did not make the King superior to the wadsetter; and albeit the King was superior, yet the ward can extend no farther but to the back-tack duties, and not to the whole rents of the lands, seeing the King and his donatar could have no farther right than the wadsetter, as also the wadset was satisfied and paid by the wadsetter's intromission; and albeit the back-tack duty did contain a clause irritant, in case of not payment of the back-tack duty, and that the wadsetter had likewise apprised for these back-tack duties, yet there was no infeftment past upon the apprising, and the back-tack duties, for which the apprising was led, were also paid by the wadsetter's intromission, for which Cleghorn the heritor had intented count and reckoning against the the apparent heir of the wadsetter. Answered, That the wadset being to be holden either a me or de me, the confirmation granted by the King made the base infeftment to become public, and consequently the wadsetter to be the King's vassal; and the wadset being confirmed, he had thereby right to the whole rents, and might have excluded the King from the same; and so, by the same reason the ward having now fallen, the King and his donatar have now right to the whole rents, and the back-tack duty is only a personal right betwixt the wadsetter and the granter of the wadset; and personal provisions and obligements, or disposition or other right not particularly mentioned in the infeftment, will neither prejudge a singular successor, nor the superior; and infeftment having followed upon the wadset, albeit the wadsetter had intromitted with as much as would have paid back the sums of wadset and the tack-duties for which apprising was led, however there might be a ground of declarator for declaring the wadset to be extinguished, yet, seeing there was no declarator obtained, nor renunciation granted by the wadsetter before the casualty of ward fell to the King, but the wadset right being still standing, the King and his donatar have right to the ward of the whole lands, by the wadsetter's decease. The Lords repelled the first allegeance, and found, that the confirmation made the defender's right public; and repelled the second allegeance, founded upon the back-tack; and found that the casualty belongs to the King as to the whole subject; and repelled the last allegeance, bearing that the wadsetter had intromitted with as much of the rents as would extinguish the wadset, unless there had been a decreet of declarator of extinction obtained before the casualties fell.

Sir P. Home, MS. v. 3.