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Scottish Court of Session Decisions >>
E. Buccleugh v Young and Ker. [1629] Mor 2631 (25 March 1629)
URL: http://www.bailii.org/scot/cases/ScotCS/1629/Mor0702631-088.html Cite as:
[1629] Mor 2631
Subject_1 COMPENSATION - RETENTION. Subject_2 SECT. XIII.
Real and Personal Rights, Whether Mutually Compensable.
E Buccleugh v. Young and Ker
Date: 25 March 1629 Case No. No 88.
A reverser having consigned the wadset sum upon an order of redemption, the same was decerned to be delivered up to an appriser of the wadset lands, and was found not compensated by a separate liquid claim, owing by the wadsetter to the reverser; and that, because no compensation can be betwixt an heritable right and a moveable sum.
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The Earl of Buccleugh pursuing redemption against Young, who had a redeemable wadset of him, mentioned, voce Redemption; and in this redemption, one Ker, who was creditor to Young the wadsetter, had, for sums owing to him by the said Young, comprised the, said Young's right of wadset and infeftment, and who upon that comprising, had charged the Earl to enter him, and by virtue thereof compearing, and desiring that the consigned money, whereupon the lands wadset were redeemable, might be delivered to him; and the Earl alleging, That he ought to have right thereto, in respect that Young the wadsetter, before Ker's comprising, was decerned to pay to the Earl certain sums of money, wherein he was his debtor, so that he might compense therewith, and might therefore take up the money consigned for the redemption; and the compriser answering, That seeing the comprising gave him right to the wadset, the money whereupon the land was redeemed behoved to pertain to him, and the pursuer could not compense therewith, for that debt owing to him, the compriser having comprised an heritable right, for eliding whereof, nothing could be obtruded of any moveable debts owing to the redeemer. The Lords found, that the compriser had the only right to the sum, whereupon reversion was granted, and not the redeemer; for albeit the wadsetter was owing a moveable sum to the redeemer, before the wadsetter's right was comprised, yet seeing the compriser had comprised that right at that same time when the wadset stood, and before any order of redemption used; and seeing the redeemer had done nothing before the comprising, nor yet since the redemption, nor consignation (whereby it might be supposed that the sum became moveable), to make that sum consigned liable, or to affect the same to him for his debt; therefore it was found, that the compriser had right to the sum, the same becoming in the place of the right of wadset comprised, and which was redeemed by the said sum, which being consigned by the redeemer, in the depositar's hands, could not be claimed by the redeemer, to be compensed with, and to be taken up by him and retained; for then there could not be a redemption used by him; so that he was found not to have right thereto, and that the redeemer could not compense the sum consigned for redemption, with a debt owing to him by the wadsetter, against the said compriser, who was a singular successor, albeit it had been granted that he might have compensed against the wadsetter's self, if he had not been denuded of his right. See No 55. p. 2204.
Act. Nicolson.Alt. Cheap.Clerk, Scott.
Fol. Dic. v. 1. p. 164. Durie, p. 441.
