Edmonstone — Petition, 3 Feb 1772 (Box 2)

Untitled February 3. 1772. Unto the Right Honourable the Lords of Council and Session T h e P E T I T I O N 3. James Edmonstone Jamesm aE Nether-Williamston, Humbly Shewth, T HAT Robert Tweedale, late brewer at Mid-Calder, being in- debted to the petitioner in the sum of L. 49 Sterling, the petitioner applied to him, in the month o f July 1766, for payment of the same. That Mr Tweedale represented to the petitioner, that it would be inconvenient for him to make pay- ment at that time, and begged of the petitioner to grant him some delay, promisin g that he would pay him soon; and in the mean- time, that he would grant him a right for his security over some old houses which he had belonging to him in the town of Mid-Calder, and that he would infeft him in these houses at his own expence. The petitioner being unwilling to distre ss his debtor, more especi- ally as he promised to pay him the whole debt in a few years, agreed to grant him some delay, on condition that his debtor should infeft him for his security in the houses above mentioned. This accord- ingly was agreed to: A deed was made out, in which the debt due to the petitioner is acknowledged; and in consequence thereof, Mr Tweedale dispones to the petitioner certain houses belonging to him in the town of Mid-Calder. Tills deed contains an obligation to in- feft, and an assignation to the rents, but is made redeemable in all time coming by Tweedale, by payment of the principal sum ac- knowledged to be due, and annualrents that shall fall due, with the expences of the infeftme it and other necessary charges. & c. A copy of this deed is annexed to this petition for your Lordships perusal. The petitioner, although he was infeft, 6th June 1767, did not enter into possession of the houses contained in the disposition. He allowed allowed the defender to continue to live in them, and to draw the rents o f what he did not possess; but as Tweedale promised, when the deed was granted, to make payment in a short time of the sum acknowdedged to be due, and to pay the interest in the mean time, the petitioner, in hopes that he would fulfil his promise, applied to him again for payment in May 1770: But Mr Tweedale begged still for some further delay; and" in order to prevail the more easi ly on the petitioner, he, of this date, granted a new writ under his hand, ho- mologating the former deed. The petitioner however found at last, that there was no end to the delays which were craved, and being of opinion, that he was by no means obliged to rest satisfied with a disposition to a few old houses in a ruinous condition, not worth half the value or the debt, and to put which into any tolerable repair would cost more than the sum due, he brought a process, of this date, against Mr Tweedale, before the sheriff-depute of Edinburgh, for payment of the foresaid princi- pal sum of L. 49 Sterling, acknowledged to be due to him in fore- said deed, with annualrents thereof from Whitsunday 1766, and L. 3: 9: 6 Sterling for expences of infeftment on the said disposition, and making up Tweedale’s titles to the subjects therein mentioned, deducing L. 2 received from the defender since the date of said dispo- sition, as paid o f annualrent. To this action defences were given in; in which it was pleaded, that the petitioner had now no claim against the defender for this sum; but that the disposition granted by him operated a total ex- tinction of the debt, and put an end to any claim against him, which otherwise the petitioner might have had, had it not been for the dis- position in his favour. The petitioner must say, he was not a little surprised when this defence was offered for the defender: He knew well that it was con- trarv to the idea of the parties, when the deed referred to was made out: He was certain, that he himself had accepted of it merely as a right in security: He was satisfied from the communing that passed when the disposition was granted, from the instru ctions which were given to the writer that drew it, and from the repeated promises which the defender at that time made him of speedy payment, that such likewise was his idea; and that it was never intended either by the one party or by the other, that the acceptance of the deed should operatean extinction of the debt, and that the petitioner should there- by be forever after excluded from insi sting for payment, upon his a- greeing to give up any right which he had acquired over these houses. The The sheriff, however, upon advising Mr Tweedale's defences, with answers on the part of the petitioner, was pleased, of this date, to pronounce the following interlocutor: “ The sheriff having consi- dered the libel, writs libelled on and produced, and answers; in respect of the disposition produced, founded on in the defences, sustains the defences, and assoilzies the defender”. The petitioner having presented a petition against this interlocutor, the sheriff was pleased to refuse the desire of the same, and adhere to his former in- terlocutor. The petitioner complained of these interlocutors by advocation, and the cause having come in the course of the roll before Lord Bar- jarg, Ordinary, his Lordship was pleased, 21st November last,to pro- nounce the following interlocutor: “ Advocates the cause, and finds, that the deed in question is only to be considered as a right in se- curity; and finds, that the pursuer is intitled to insist in the action for payment; but that he must account for the rent of the tene- ment from the time that he entered into possession.” The defender having represented against this interlocutor, answers were given in thereto by the Lord Ordinary’s appointment; and a- longst therewith, the writing abovementioned, of date, 20th May 1770, was produced. The Lord Ordinary, upon advising the representation and answers, was pleased to pronounce the following interlocutor: The Lord Ordinary having again considered the representation for Robert Tweedale defender, with answers for James Edmonstone pursuer, and the writing now produced, finds, That by the con- ception of the disposition in question, and of the said writing re- lative thereto, the said disposition was granted by the defender, and accepted by the pursuer, in solutum of the debt, but redeem- able upon payment of the principal sum, interest, and expences, being recovered by intromission with the rents, or by payment being made by the defender: Therefore recalls the interlocutor for- merly pronounced, and remits the cause simpliciter to the sheriff; and in regard the cause has been fully pleaded before, the Ordina- ry recommends to the pursuer, if he means to apply for an alte- ration of this interlocutor, to do it directly to the whole Court." "Of this interlocutor the petitioner humbly begs your Lordships review; and he hopes he may be the more easily forgiven for fo doing, as the Lord Ordinary's first interlocutor is in his favour, and as by his last interlocutor he seems to point out this method of application to your Lordships. The defender insi sts, that the disposition granted by him, of 17th July 1766, operates a total extinction and discharge of the debt, and that that the disposition is to be considered in the light of a sale of a tene- ment under reversion for a price paid. But when the nature of this disposition is considered, when the different clauses thereof are examined, the petitioner is hopeful your Lordships will be satisfied, that it by no means supports the defence pleaded by the defender. That this disposition cannot be considered as containing a sale merely under reversion, the petitioner apprehends to be clear from the very narrative o f the deed. It does not bear, that it was granted for a price paid at the time for the subject disponed; but proceeds upon the narrative, that the defender is owing the sum of L. 49: The existence of the debt therefore is fairly acknowledged. It is on ac- count of this debt, as mentioned in the deed, that the disposition of the tenement of houses is made; and the disposition is clogged with the following clause: “ That the said houses shall be redeemable al- ways by the defender, his heirs and successors, from the petitioner and his foresaids, by payment to him of the foresaid sum of L. 49 Sterling, and annualrent that shall fall due thereon since the term of Whitsunday last, the expences o f infeftment to follow thereup- on, and feu-duties that are due or may become due to the supe- rior, and other necessary charges that may be disbursed by the said James Edmonstone and his foresiaids in attaining the posses- sion.” By this clause your, Lordships see, that the defender re- serves to himself, his heirs and successors, the power o f redemption, without any restriction in point of time. After the clause of redemp- tion, follows an asignation to the unexecute procuratory of resignation, clause of warrandice, and asignation to the rents, writs, and evidents, in these words: “ Further, I not only asig n the said James Edmon- stone and his foresaids in and to the rents, maills and duties of the said house and pertinents since Whitsunday last, and in all time thereafter, until payment of the sum before mentiod, but also in and to the whole writs, rights,” & c. This being the nature of the disposition, the petitioner must ask, what there is in it, that should lead your Lordships to think, that he, by accepting thereof, either gave up, or meant to give up, all after claim against the defender for payment of the debt? The existence of the debt is fairly acknowledged, but there is no discharge o f it contained in the disposition: how then can it be maintained that the debt is extinguished? The defender has argued, That the words of the disposition, which bear, that it is granted for the said James Edmonstone his payment of the said sum and annualrents thereof retting due, do infer, that by acceptance of this disposition, the debt was satisfied and ex- tinguished. tinguished. But from these words no such meaning can be drawn. The petitioner does admit, that the words, fo r h is payment of s aid debt, will have the effect to exclude any claim which he the petitioner would have had against the defender in fo far as he has intromitted with the rents of the houses, or drawn money out o f the subject disponed; and this the Lord Ordinary has found by his first interlocutor. So far therefore the disposition may be reckoned in payment of a debt due the petitioner, but can never be considered as operating payment of this debt, for sums which he has not received or drawn out of the s ubject. Indeed, the contrary appears from every clause in the deed. In the asignation to the maills and duties, the assignation is expressly made, until payment of the s ums before mentioned. This clearly shows, that by this dispofition the sums before mentioned were not considered as paid and extinguished, but the obligation to make payment still re- mained on the defender; and of consequence, the petitioner’s action against him for payment was still reserved. In the clause of redemption, the houses, are made redeemable by the defender in all time coming, upon payment of the foresaid sum and annualrents, & c. This being the case, by what argument in law or equity can the defender hope to convince your Lordships, that though the obligation upon him to make payment st ill remained; that though he can, in all time coming, recover right to his houses, by making payment; that yet the petitioner’s right to insist in an action for payment is cut off, and that he can never, upon agreeing to give up his right to the houses, recover the sums acknowledged to be due? The defender, in some of his papers, has been fond o f assimila- ting this disposition to a wadset-right granted by a debtor to his creditor. It must be confessed, that the deed in question is inaccu- rately drawn, being the work of a country-writer, not very versant in matters of this kind, and not written by the petitioner’s own man of business, as has been alledged by the defender. But the petitioner has no objection to adopt this comparison of a wadset so far as it will go. Your Lordships know, that, in a right o f wadset, at any time before the term of redemption is elapsed, not only may the reverser redeem the land, by usin g an order of redemption against the wad- setter, and making payment of the redemption-money, or making consignation, if the money is refused; but that if the wadsetter chu- ses to have his money, rather than the lands, he is entitled to insi st for the same, either by using requisition, i f requisition is made neces- sary in the wadset-right; or in- case no requisition be made necessa--ry, allegation, that the debt has been discharged and extinguished. Had he really thought this to have been the case, would he have made payment of this sum, in order to extinguish the debt pro tanto? and had he thought all action against him for payment of the debt at an end, would he not have allowed the petitioner to remain satisfied with what he had got? Your Lordships will further be pleased to attend to the circum- stance of the deed in question, being homologated and confirmed so late as 20th May 1770. This confirmation runs in the following words: “ Mid-Calder May 21st, 1770. I Robert Tweedale, eldest lawsul son of Baillie John Tweedale, late merchant' in Mid-Cal- der, by virtue of my disposition, dated in the year 1766, in fa- vours of James Edmonstone, tenant in Nether-Williamston, for a certain sum of money borrowed from him, I hereby empower and give all manner of right to the said house that I have in Mid-Cal- der to the said James Edmonstone, to set, and lift rents, and up- hold the said subject, as my disposition contains; only, always redeemable, as the said disposition bears, and ay and until he fuly paid of the whole s um that is contained in the s aid disposition, with all interest, ay and until payment. This I do hereby give my full power, before these witnesses, John Weir, tenant in Longheugh- Meill, and Peter Campbell, clerk to Mr Donald M ‘Kellar brewer in Mid-Calder, and hereto subscribing with me. (Signed) Robert Tweedale. John Weir w itness, Peter Campbell witness.” Here your Lordships see, that in this paper, it is expressly mentioned in the terms of the disposition itself, that the subject of the disposition shall be always redeemable, ay and until the petitioner be fully paid of the whole sum that is contained in the said disposition, with all interest ay and until payment. This therefore clearly supposes, that the petitioner has not been yet paid. The Lord Ordinary indeed in his last interlocutor, has made mention o f this writing, and seems to consider it as supporting the defender’s allegation. But the peti- tioner, with the greatest deference, must submit to your Lordships; that on the contrary, it proceeds on the supposition that the pur- suer’s debt had not yet been paid or extinguished, and that it must therefore prove fatal to the defenders argument. The petitioner must beg your Lordships attention to another cir- cumstance, which, he humbly apprehends, affords the strongest evi- dence of what was the idea of parties at the time the deed in question was granted; and that it was by them understood, that it was granted merely in security. Your Lordships will be informed, that the peti- tioner has fortunately fallen upon the accompt of the writer, who drew drew the disposition in question, for his trouble and expence in ma- king out the same, and for infefting the petitioner. And in this ac- compt, which is dated 2d November 1768, it is very observable, that the charge for making the disposition in question, is in the following words; " To stampt paper for dispos ition in s ecurity, Robert Tweedale “ to James Edmonstone, 1 s. 7 d. Writing said disposition, 5 s17 Here your Lordships see, that the person who was employed to write this deed, and who actually wrote it, considered it merely as a disposi- tion in security. Possibly he may not have expressed the deed in the most accurate terms; but it is most certain, that he would never have considered himself as having written a disposition in security, or have given in his accompt for writing a dispos ition in s ecurity, had he not considered, that the instructions he received from the parties, were to draw a deed of that kind. It, after all that has been said, any doubt should still remain with your Lordships as to the meaning of this disposition, the petitioner does undertake to prove by the witnesses inserted and subscribing thereto, that it was agreed to and understood between him and the defender, that this disposition was granted and accepted only as a security, and not in extinction of the debt, as is now pretended. The petitioner remembers well, that at the time the disposition was grant- ed, he was demanding payment of his money; that the defender told him it was inconvenient for him to make payment at that time, but promised to make payment in four or five years of the whole sum, and begged of him to accept of this disposition, as a security in the meantime. The petitioner is hopeful therefore, that if your Lord- ships should think the meaning of the words in the disposition doubt- ful, you will have no difficulty in allowing him to lead this proof, as it is not intended thereby to take off the effect of a written deed, but merely to explain the meaning of parties in granting and ac- cepting of the same. The defender has thought proper to accuse the petitioner of being a rapacious creditor, desirous to oppress; but no accusation was ever more improper, or worse founded. The houses contained in this disposition, as has' been said, are in a ruinous condition. Whatever rent they may have yielded in times past, they will yield hardly any thing in time to come, unless more money be laid out upon them than the sums charged for amount to. The petitioner apprehends therefore he cannot be blamed, for defiring to obtain payment of his debt, and for declining to accept, instead thereof, o f the possession of a few old houses at present, not worth half the value of the debt, and which are growing less valuable every day. The The defender has complained, that the petitioner has pursued an action of removing against him, turned him and a small family out of doors, and entered into the possession of the whole subjects. But the petitioner has already informed your Lordships, that though he obtained himself infeft, yet he has never entered into the possession. It is very true, that he obtained decreet of removing against the de- fender, at Whitsunday 1770; but it is as true, that notwithstanding this, the defender has still continued to live in the houses, and the petitioner has not as yet drawn a sixpence from any part of them. May it therefore pleas e your Lordsh ips, to alter the Lord Ordi- narys last interlocutor, of date, 23d January 1772; to adhere to the interlocutor, 21st November 1771; to advocate the caus e, a nd to decern. According to justice, &c. W I L L. C R A I G. D I S- D ISPO S IT IO N, Robert Tweedale to James Edmonstone. BE it known to all men by thir presents, me, Robert Tweedale brewer in Mid-Calder, eldest lawful son of the deceased Bailie John Tweedale merchant in Mid-Calder: Whereas I am ju st ly ad- debted, resting, and owing to James Edmonstone farmer in Nether- Williamston, all and haill the sum of L. 49 Sterling money; there- fore for the said fames Edmonstone his payment of the said sum and annualrents thereof, resting since Whitsunday last, that the said sum became due and payable, wit ye me to have fold and disponed, as I hereby sell and dispone to and in favours of the said James Edmon- stone, his heirs and assignees whatsomever, heritably, but always un- der redemption, in manner after mentioned, All and haill that tene- ment of houses, with the little house or coal-house adjoining thereto, high and laigh, back and fore, under and above, with the pertinents, lying within the town of Mid-Calder, at the south-stile of the parish- kirk thereof, as presently possessed by myself, bounded by the church-yard of Mid-Calder on the north and east, by the high street of the said town on the south, and by the vennel leading from the high street on the west; with the privilege and liberty of winning and leading stones out of my Lord Torphichen’s quarry in Calder, where- ever the same be in the barony, for building and upholding the said houses in all time coming; together with all right and title, interest, claim of right, property and possession, petitor and possessor, which I, my predecessors and authors, heirs and successors had, have, or a- nywise may have, claim, or pretend to the said houses, with the per- tinents above disponed, or any part thereof in time to come. And I bind and oblige me, my heirs and successors, duly and validly to infeft and seise the said James Edmonstone and his foresaids in the said tenement of houses, in due and competent form as effeirs, and that by two infeftments and manner of holdings; the one thereof to beholden of me and my heirs in free blanch farm, for the yearly pay- ment of a penny Scots money upon the ground of the said lands, at the feast of Whitsunday, in name of blanch farm, if the same be asked allenarly, and relieving me of the feu-duties payable forth of the said houses to the superiors; and the other of the said infeftments to be holden from me and my heirs of James Lord Torphichen, his heirs and successors, my immediate lawful superiors of the said houses and pertinents, sicklike and as freely as I hold or might hold the samen myself, and that either by resignation or confirmation as best shall please the said James Edmonstone and his foresaids, (but redeemable always always the said houses and pertinents by me, my heirs and succe sors, from the said James Edmonstone and his foresaids, by paymen to them of the foresaid sum of L. 49 Sterling money, and annual- ren ts that shall fall due thereon since the term of Whitsunday last, the expence of infeftments to follow hereon, and feu-duties that are due or may become due to the superior, and other necessary charges that may be disbursed by the said James Edmonstone and his foresaids in attaining the possession.) And for expeding the said infeftment by resignation, I hereby assign the said James Edmonstone and his fore- saids in and to the procuratory of resignation contained in the dispo- sition o f the said subjects, of date the 25th day of December 1754 years, made and granted by Mr James Tweedale minister of the gos- pel at Old Luce to me, yet unexecute, with the haill effects thereof, but redeemable always the said subjects, upon payment to the said James Edmonstone o f the sums above mentioned; which disposition I bind and oblige me and my foresaids to warrant to the said James Edmonstone "and his forefaids at all hand and against all deadly, as law will. Further, I hereby not only assign the said James Edmon stone and his foresaids in and to the rents, maills, and duties o f th said houses and pertinents since Whitsunday last, but in all time hereafter (until payment o f the sums before mentioned,) but also in and to the whole writs, rights, and evidents of the said houses con- ceived in favours o f me, my predecessors, and authors; and particu- larly the said principal disposition, of the date foresaid, granted by the said Mr James Tweedale to me, with all that is competent to follow thereupon; which asignation, so far as concerns the writs and e- vidents, I oblige and my foresaids to warrant to the said James Ed- monstone and his above written at all hands; and with respect to the maills and duties, from my own proper fact and deed. Attour, to the effect that the said James Edmonstone may be the more conveniently infeft and seised in the houses before mentioned, with the pertinents, to be holden of me in manner foresaid, to David Mitchell merchant and bailie in Mid-Calder, and ilk ane o f you conjunctly and several- ly, my bailies in that part, by this my precept specially constitute, greeting, It is my will, and I charge you, that incontinent after sight hereof, ye pass to the ground o f the said houses, and little house or coal-house above disponed, and there give and deliver heritable state and sasine, real, actual, and corporal possession, (but always under redemption upon payment of the sums before mentioned,) o f all and haill the said houses and little house or coal-house at the south stile of the parish-kirk o f Mid-Calder, lying, bounded, and possessed as said is, with the said privilege and liberty of winning and leading stones stones out of my Lord Torphichen’s quarry in Calder, wherever the same be in the barony, for building and upholding the houses above disponed in all time coming, to the said James Edmonstone, his heirs and assignees foresaid, by delivering to them, or their certain attor- ney in their name, bearer hereof, of earth and stone of the ground o f the said houses, as use is, and this in no ways ye leave undone. The which to do, I commit to you and each of you, conjunctly and seve- rally, my bailies in that part foresaid, my full and irrevocable power direct to you for that effect: Consenting to the registration hereof in the books of Council and Session, or others competent, therein to remain for preservation; and for that effect, I constitute my procurators, & c. In witness whereof, these presents, written on this and the two preceding pages o f stampt paper by John Gray writer in Edinburgh, tacksman of Cockburn, are subscribed by me at Mid-Calder, the 17th day of Ju- ly, 1766 years, before these witnesses, John Weir tenant in Long- haugh-mill, John Christie weaver in Mid-Calder, and the said John Gray. John Weir doEnsttR Robert T weedale. John Christie witness. John Gray doEnsttR Infeftment given to James Edmonstone at Mid-Calder, 6th July 1767, ’twixt one and two afternoon. Witnesses, John and Archibald Christies weavers in Mid-Calder, David Mitchell bailie, John Gray, N. P.