(3) by the negative prescription, although the adjudication be followed by charter and sasine, if not accompanied with posses sion.1 1128. What is meant by the "first effectual adjudication" { This has reference to the case where there is a competition of adjudications, the "first effectual" being that which fixes the criterion of pari passu preference introduced by the Act 1661, c. 62, giving an equal ranking to all adjudications led before the one first made effectual, and to those led within a year and day after it. An adjudication is made first effectual, provided it has proceeded on a summons duly intimated on the Walls and in the Minute Book, (1) by actual infeftment on the decree, or registra tion of it in the Register of Sasines; or (2) by constructive infeftment, which is produced by lodging a draft charter and note in the office of the Presenter of Signatures, or by a general charge of horning against superiors, according as the lands are held of the Crown or of a subject, and by recording in the Register of Abbreviates a copy of the note and an abstract of the Crown Charter, or the charge of horning against the subject superior. 1129. A, for a debt of £3000, adjudges his debtor's property, which was subsequently sold under a ranking and sale for £2000. Within a year and day of A's adjudication, which was made first effectual, B led an adjudication of the property for an equal amount; but before B raised his adjudication C inhibited the proprietor of the lands for a debt of £1000, contracted after A's, but before B's. What are the rights of A, B, and C, respectively? The price would be equally divided between A and B, their debts being equal, and their ranking being pari passu, in conse quence of the statutory rule of preference. C is not entitled to participate in the price, although his debt was contracted before the debt of B, and his inhibition used before B's adjudication was raised, because C could have drawn nothing from the debtor's estate though B's debt had not been contracted; and an inhibition of a creditor not adjudging does not affect a posterior adjudging Anderson, M. 10676. 19 & 20 Vict. c. 91, § 6. creditor, if an adjudication has been led by another creditor for a debt contracted prior to the inhibition, and exceeding the value of the lands.'(u) 1130. What is the rule of ranking adjudgers on the debtor's estate whose adjudications have not been led within a year and day from the date of the first effectual adjudication? They are postponed to those creditors who have adjudged within the year and day, and are ranked according to the dates of their decrees.2 XIII. HERITABLE SECURITIES. 1131. What is a wadset, and what were the different forms by which the right was constituted? A wadset is a form of security now obsolete, by which a proprietor impignorated or pledged his lands to his creditor in security of debt. The right was constituted originally by a charter granted by the debtor or reverser to the creditor or wadsetter, impledging the lands until payment; afterwards by a deed of alienation ex facie absolute and irredeemable, with a separate writing called a letter of reversion; and, lastly, by a mutual contract, by which the reverser, on the one part, disponed the lands, and the wadsetter, on the other part, granted the right of reversion.3 1132. What was meant by a proper and an improper wadset? (1.) The proper wadset was that by which the wadsetter got possession of the lands with the rents and produce for the use of his money, so that the wadsetter was not obliged to account for the surplus of rents exceeding the interest, nor was the reverser bound to make up any deficiency. 1 Miln, M. 2876; Ersk. 2, 11, 16; 1 Ross L.C. 259. 2 Ersk. 2, 12, 33. 3 Ersk. 2, 8, 4; Jur. St. i. 393. (u) The rules of ranking of inhibiting, adjudging, and real creditors will be ound fully stated Bell's Com. ii. 407 et seq. (2.) The improper wadset was that under which, if the rents were less than the legal interest, the reverser was obliged to make up the deficiency; and if the rents exceeded the interest, the wadsetter was bound to impute the surplus towards extinction of the principal.1 1133. What were letters of regress? The writ so called was a writing obtained by the reverser from his superior when the wadset was holden a me, its purpose being to secure his re-entry upon extinction of the wadset, without payment of a composition." 1134. What was meant by an eik to the reversion? An eik to the reversion was a deed granted by the reverser, acknowledging receipt of an additional loan from the wadsetter, and declaring that the wadset should not be redeemable until both loans were paid." 1135. How is a wadset extinguished, the redemption being voluntary? (1) An improper wadset may be extinguished by a discharge and renunciation recorded in the Register of Sasines. (2) But where the wadset is proper, there ought to be a reconveyance with resignation ad remanentiam, as the provisions of the Heritable Securities Acts do not appear to apply to such rights, and it is doubtful whether a discharge and renunciation is sufficient.* 1136. What is a bond and disposition in security? A bond and disposition in security is a deed granted by the borrower to the lender, containing (1) an acknowledgment of the loan, and an obligation to repay the principal sum and interest, with penalties applicable to each; (2) a conveyance to the lender of the borrower's lands in security of the principal, interest, and penalties, the lands being redeemable if the power of redemption be exercised, but irredeemable in the event of a sale in terms 1 Ersk. 2, 8, 26; Jur. St. i. 394. 2 Ersk. 2, 8, 18; Menzies Lect. 800 (848). 3 Ersk. 2, 8, 10. 4 Stair, 2, 10, 13; D. of Roxburghe, 9th March, 1825, 1 W. & S. App. 41; Menzies Lect. 800 (848). See Ersk. 2, 8, 17. of the deed; (3) an assignation to the rents and writs; (4) an obligation of warrandice; (5) a power of redemption; (6) an obligation for the expenses of assigning and discharging the security; (7) a power of sale on default in payment; and (8) a consent to registration for preservation, execution, and publication. [As bonds and dispositions in security now require warrants of registration, a consent to registration for publication is not now necessary.] [1137. What changes were introduced by the Consolidation Act, 1868, § 117, as to the succession to heritable securities? No heritable security granted either before or after the Act is (except in the cases thereinafter provided) to be heritable as regards the succession of the creditor, but is to be moveable as regards the succession of such creditor, and to belong to his executors or representatives in mobilibus.] [1138. State shortly the excepted cases referred to in the foregoing question. (1.) The heritable security is to continue heritable as regards succession, if expressly conceived in favour of heirs, excluding executors. (2.) Even when a heritable security is conceived in favour of executors it may be rendered heritable quoad succession, whether recorded or not, by the minute (Sched. DD) provided by the Act. (3.) All heritable securities are to continue heritable (a) “quoad fiscum," and (b) as regards rights of courtesy and terce of husband or wife of the creditor. (4.) No heritable security is to pertain to the husband jure mariti where the same is taken to the wife, or to the wife jure relicta where the same is taken to the husband, unless the husband or relict have right therein otherwise. See Hodge, 7 R. 259. (5.) Where legitim is claimed on the death of the creditor, no heritable security shall be held part of the creditor's moveable estate in computing legitim.] 1139. What is the leading difference between an heritable bond and a bond and disposition in security? A bond and disposition in security contains a dispositive clause, conveying de presenti the lands in security of the personal obligation; whereas an heritable bond contains no dispositive clause, but only an obligation to infeft the lender in an annualrent corresponding to the amount of the interest, payable out of the lands, and also in the lands themselves, in security of the principal sum, interest, and penalties.1 1140. What was the obstacle which formerly existed to the constitution of heritable securities for loans by way of cash-credit; and how was that obstacle removed? An heritable security for a cash-credit, being a security for a future debt, was ineffectual under the Act 1696, c. 5, which enacted "that all dispositions or other rights that shall be granted for hereafter, for relief or security of debts to be contracted for the future, shall be of no force as to any debts contracted after the sasine following on the said disposition or right."(x) Το remedy this inconvenience, it was provided by 54 Geo. III. c. 137, § 12, and re-enacted by 19 & 20 Vict. c. 91, § 7, after the repeal of the former statute, that heritable securities may be given for cash-accounts, or for the relief of cautioners in cash-accounts, on condition that the principal sum and interest to become due under the bond shall be limited to a certain definite sum, to be specified in the security, not exceeding the amount of principal and three years' interest at five per cent.; and it is provided by the latter statute, that the heritable security shall subsist to the extent of the sum limited, or any less sum, until the cash-account is finally closed, and the balance paid up and discharged, and the infeftment renounced. 1141. How was the creditor's right under a bond and disposition in security completed before the Heritable Securities Acts; and what is now the procedure? 1 Jur. St. i. 395. (x) There was a further difficulty in reference to such securities-viz., that at common law heritable securities cannot subsist for a debt fluctuating in amount, but fall, irrespective of any discharge, whenever any part of the debt is paid, and do not revive although the debt should be again contracted. Apart from the statutory provision, the only mode of constituting a real security for such a debt is by absolute disposition and back-bond |