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Scottish Court of Session Decisions >>
Anent Redeemable Rights of Land. [1672] 2 Brn 611 (16 January 1672)
URL: http://www.bailii.org/scot/cases/ScotCS/1672/Brn020611-1015.html
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.
Anent Redeemable Rights of Land
Date: 16 January 1672
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It was questioned, a man having a wadset or hypothecation in lands redeemable upon such a sum, or a disposition of lands for relief of such particular cautionaries wherein he stands engaged for the disponer, as are therein named, without this clause, “and for relief of all other cautionaries wherein he either presently or thereafter happens to be bound for him,” if other sums be owing him beside the sum contained in the wadset, or if he has paid other sums as cautioner, forby those enumerated in the bond of relief; whether he may be forced to renounce his wadset and disposition for relief, upon payment only of the sums in the wadset and the cautionaries mentioned in the bond of relief, or if licet rem detinere et incumbere pignori till the other personal debts for which he has no such real security be paid him. I imagine he could not detain the land with us, if the sums in his wadset or bond for relief were offered. But the Roman law makes a very rational distinction in this case, qui debet pecuniam sub pignore, aliam vero summam eidem sine pignore nudo quippe chirographo, the debtor cannot outloose the land or pledge, unless he pay both the sums; but this will not strike against another creditor of the debtor, or one who shall acquire his right ex titulo singulari. Vide titulum C. Etiam ob chirographariam pecuniam pignus retineri posse. Vide supra, No. 333, Maisson against Rhind, January 1672.
