Scottish Court of Session Decisions

Mrs Margaret Paterson or Waddell, spouse of James Waddell of Stonefield, obtained a disposition to certain lands and feu-duties in May 1832, which narrated that she had paid a price of £7750 for them. The disposition expressly excluded all right on the part of James Waddell, or his creditors, to the lands, rents, or feu-duties conveyed; and it provided that Mrs Waddell might uplift and discharge the rents or feu-duties on her own receipt alone, without her husband's consent, and to enter vassals, output or input tenants, set tacks, &c. as effectually as if she was still unmarried. She was infeft under this disposition in June 1832, and she continued to draw the rents, and otherwise exercise the powers conveyed by it, until the term of Whitsunday 1837, when the tenants and feuars refused to pay to her, in consequence of a letter addressed to them by her husband, James Waddell, and his son and daughter, intimating that they were liferenters and fiars in the property, and requiring the tenants and feuars to pay to them. James Waddell also executed a deed purporting to revoke the disposition to Mrs Waddell, as donatio inter virum et uxorem, and raised an action of declarator and adjudication for completing their own alleged preferable right.

In these circumstances Mrs Waddell presented a petition for sequestration of the rents and feu-duties, and the appointment of a judicial factor thereon. The petition was opposed by James Waddell and his son and daughter: but the Court unanimously granted it with expenses. Their Lordships at the same time observed, that if the application for sequestration had come from James Waddell, and been resisted by Mrs Waddell, in respect of her clear ex facie title to the subjects, they would have felt more difficulty in granting the petition; as the mere circumstance of a challenge of a feudal right having been instituted, did not infer that the ex facie feudal proprietor was to have the administration of his property taken out of his hands. But as the sequestration was asked by the petitioner, who had a clear right to have the rents and feu-duties levied without interruption, and placed in security, there was no ground for refusing it.

Their Lordships appointed the party, named by Mrs Waddell, to be judicial factor, though the respondents opposed this. The respondents stated no ground of objection to him, and in these circumstances the Court intimated that they thought the nomination of the petitioner should be approved of, in respect of her interest and ex facie title.