Scottish Court of Session Decisions

Subject_1 REGISTRATION.

Dunipace
v.
Olivestob

Date: 20 July 1675
Case No. No 31.

A private discharge of a renounciation of a registered wadset found good against a singular successor.

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There being certain lands given in wadset by the heritor, and the reversion contained in the right of wadset, which wadset was thereafter denounced, and the renunciation registered; after which the heritor having granted a discharge of the renunciation, and so put the wadsetter in his own place, as if he had not renounced; but the discharge was not registered; a singular successor having acquired the right of the wadset, and the lands being disponed or comprised from the heritor, or first granter of the wadset; there was a declarator intented, which of them had best right, and ought to be preferred; the ground of the debate being, that the discharge of the renunciation ought to be registered it being necessarily required by the 16th act of the 17th Parliament of King James the Sixth, requiring all reversions and assignations thereto, discharges thereof, and renunciations of wadset, to be registered within 60 days after the date, otherwise to be null; so that the question being anent the registration of a discharge of a renunciation of a reversion, the parties having agreed among themselves, did remit to the Lards, to determine if the discharge was null for want of registration; and so the heritor and granter of the wadset, and those having right from him, had the undoubted right of the lands free of the burden of the wadset. The Lords did seriously consider the act of parliament, seeing this, was to be a leading case, and found, that the act of Parliament being stricti juris, and contrary to the old law and custom, could not be extended to any case but those expressly related to in the act foresaid; whereas there was no particular mention of the discharges of renunciations, the act bearing only, that reversions, regresses, bonds for making the same, assignations thereto, discharges thereof, renunciations of wadsets, end grants of redemption; they are not at all mentioned, so that unless there were a new act of Parliament, declaring the same, they stand good in law, as they were before the act of Parliament, and did so decern; albeit that it seems that, in law and reason, there is par ratio that the discharges of renunciations ought to be registered, as well as the renunciations themselves, seeing the great reason of that act was, for the security of singular successors, who were often prejudged of their heritable rights of lands, or annualrent, wherein their authors stood publicly infeft, by private or latent deeds and writs, which it was impossible for them to know, or find out, and therefore the act of Parliament was made, that all such writs should be registered; and therefore a discharge of a renunciation granted by the heritor, who did give the wadset, being of that importance that it takes away the benefit of the renunciation from the first granter, and makes the wadset subsist and stand good as it was before the discharge, ratio quæ est anima legis necessarily requires, that the same should be made public by registration, to put all in tuto to contract with the wadsetter, as having undoubted right by a public discharge of the renunciation of the wadset; but yet the Lords found, that ratio legis was not enough, and that there was necessity of a new act of Parliament, and seeing this act founded upon was correctoria juris antiqui it could not be extended by them, but by the parliament.

Fol. Dic. v. 2. p. 330. Gosford, MS. No 784. p. 492.