Scottish Court of Session Decisions

Subject_1 ADJUDICATION and APPRISING.
Subject_2 RANKING of ADJUDGERS and APPRISERS.

Lady Frazer
v.
The Creditors of Lord Frazer and Lady Marr

Date: 12 December 1677
Case No. No 3.

Adjudication in implement, led within year and day of another, for a liquid sum; does not come in pari passu.

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The Lady Frazer, upon her contract being infeft in the lands of Stanywood, did consent to the sale thereof with her husband; and, in lieu thereof, her husband disponed to her in liferent the lands of Cairnbulg; but she was not infeft during his life, but obtained an adjudication against his heir, and was thereupon infeft; the creditors also adjudged for their debts within year and day of the lady; and in a competition for the rents, between the adjudgers and the young lady craving a terce, it was alleged for the old Lady, That she had the right of the whole lands during her life, by her adjudication on her liferent; because the act of Parliament 1661, betwixt Debtor and Creditor, which brings in apprisers pari passu, apprising within year and day, cannot extend to this case; neither the late act of adjudications in place of apprisings; because these acts are only in relation to apprisings or adjudications for liquid sums, whereby the first effectual apprising is declared; as if an apprising were deduced for the whole sums apprised for, within the year; which cannot extend to an adjudication, for implement of a disposition in fee or liferent; which can only reach the lands disponed, and not the whole estate of the disponer.— It was alleged for the young Lady, That she is preferable for her terce to all the creditors, because her husband died in see of the lands in question; and therefore neither the incomplete disposition in liferent to the old Lady, which was not made real by an infeftment, till after the young Lady's husband's death, nor the adjudications of her husband's creditors, deduced after her husband's death, could exclude her terce, constituted provisione legis, and requiring no infeftment.—It was answered, That the young Lady had no right of terce but by her contract produced, whereby her husband renounced his interest in her liferent from her first husband, and she renounced all provisions to be made by him out of his estate; and though, by a writ a part of the date of the contract, he declares, that she was not thereby excluded from her terce; yet that is a latent fraudulent deed to deceive the creditors, who seeing the contract, thought themselves secure against the terce.

The Lords found, That, by the contract, the terce was not excluded, and therefore preferred the young Lady to her terce, against both the old Lady and the creditors, neither of them being infeft during the husband's life; and found, That if the old Lady did liquidate the value of her liferent, and adjudge therefore, the creditors adjudging within year and day, would come in pari passu; but if she adjudged only the lands provided to her in liferent, and was infeft before the creditors adjudged, she is preferable to them, and excludes them during her life.

Fol. Dic. v. 1. p. 16. Stair, v. 2. p. 577.