Scottish Court of Session Decisions

Subject_1 ADJUDICATION and APPRISING.
Subject_2 ADJUDICATION Upon The ACT 1672.
Subject_3 *** The import of the act is as follows: - Considering how much comprisings have departed from the original design of the legislature, which never meant that great estates should be carried away for inconsiderable debts; nor that messengers, or ignorant persons, should judge in matters of so great importance: And, considering the great prejudice to trade and commerce, proceeding from the length of the legal reversion, during which, the creditor cannot command his money, and both debtor and creditor neglect the improvement of the lands; and, that even after the legal is expired, comprisings become the foundation of much fraud; the right thereof being sometimes acquired by the apparent heir of the debtor, who thereby secluded lawful creditors: And as, by the ignorance of notaries and messengers, and in consequence of many unnecessary solemnities, nullities have often happened in the diligences, and at all times they have been most expensive, by means of penalties and sheriff fees: In order to secure equally the interests of debtors and creditors, it is enacted, That in place of apprisings, the Lords of Session shall, at the instance of any creditor against his debtor, principal or cautioner, adjudge and decern to the creditor, in satisfaction of his debt, as constituted, such a portion of the debtor's estate, consisting in lands and other rights, which were in use to be apprised, as shall be worth the sum, principal and interest, then due, and a fifth part more, in compensation of the want of the use of the money, and the necessity of taking land in lieu of it; and these over and above the composition to the superior, and the expences of the infeftment. The adjudication shall be made according to the rates of the lands and other rights in the neighbourhood, and proof shall be taken by the Lords, on the part of the creditor, and likewise of the debtor, (if he shall desire it,) of the yearly rent and value of the lands and rights, and what they have yielded for five years preceding, and what they may pay, and the rates and prices at which such lands and rights are usually sold in the neighbourhood; with power to the Lords to determine what warrandice the debtor shall be liable in to the creditor, of the lands and rights so adjudged. Upon the decreet of adjudication, it shall be lawful for the creditor, immediately to enter to the possession of the lands or other rights, and so intromit with the mails and duties thereof, in satisfaction of his annualrent, during the not redemption; and he shall not be liable to any restriction, or action of count and reckoning. If the lands adjudged be affected with liferents, or any casualty, or if the right adjudged be such as to yield no rent during the legal to be now appointed, this shall be expressed in the decrees, together with that part of the sum effeiring thereto; that in case of redemption, the creditor may have his annualrent for that part of his sum, for which he had no profit; which lands, and other rights adjudged, shall belong heritably and irredeemably to the creditor, if they be not redeemed within the space of five years, after the decreet of adjudication, by payment or consignation of the sums, principal and interest, for which the adjudication proceeded, the composition paid to the superior, and expences, in obtaining infeftment, and interest thereof, in so far as not satisfied by possession, in manner mentioned. The creditor being once in peaceable possession, conform to the decreet of adjudication, it shall not be lawful for him to use any farther execution against his debtor, except in case of eviction upon the warrandice, which the Court shall order. But it shall be lawful for the creditor to use all manner of diligence against his debtor, principal or cautioner, by horning, caption, arrestment, or otherwise, until he enter to the actual possession. Comprisings are prohibited in future, without prejudice of any comprisings led before the date of the act, or to be deduced, of lands or other rights already apprised, of which the legal is not expired, which are to be regulated by the former laws. It is provided and declared, that if the debtor shall abstract the writs and evidents of the lands, and other rights to be adjudged, and shall not produce sufficient rights and deliver them, or transumpts of them, to the creditor, such as the Lords shall judge necessary; and, if he shall not renounce the possession, and ratify the decreet of adjudication, in order that the creditor may enter summarily and without impediment, so that he may have a clear right and quiet possession; then, and in that case, it shall be lawful for the creditor to adjudge all, or any right belonging to his debtor, in the same manner as he might have apprised them, according to the act of Parliament 1661, under the reversion, and with the power competent to other creditors, expressed in the said act. It is provided, that neither the superior, nor the adjudger, shall be prejudged by the new act; but that they shall be in the same case after citation in an adjudication, as if apprising were led of the lands at that time, and a charge given to the superior thereupon. Decreets of adjudication shall be allowed by the Lords of Session, as apprisings used to be; and the allowance shall be registered in the same manner, and under the same certification, with the allowance of comprisings, that it may be known; and that creditors may not be disappointed, by adjudging lands already adjudged to others.

Cha. II. Sect. 19. 6th Sep. 1672. p. 501. duodecimo.

Ker
v.
Ruthven

1683. March.
Case No. No 4.

A fifth part more, may be included in adjudications of rights of annualrent.

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Patrick Ker of Family, having obtained a decreet against Edward Ruthven, as representing the Earl of Bamford, his grand-father, for payment of the sum of 5000 merks, and annualrents contained in his grand-father's bond; which, being assigned to Mr William Weir advocate, and he having adjudged from Edward Ruthven, upon the late act of Parliament concerning adjudications, so much of the sum of 1600 merks; for security of which, Edward Ruthven was infeft in an yearly annualrent out of the Earl of Callendar's estate, as did effeir and correspond to the principal sum and annualrent, contained in the said bond, and a fifth part more, conform to the act of Parliament; and the adjudication being disponed to Mr David Mayne writer, and he having distressed the Earl of Callendar, he raised a suspension of double poinding against Mr David Mayne and Edward Ruthven.—It was alleged for Edward Ruthven, That the adjudication ought to be restricted to the principal sum and annualrents; and the adjudger could not have a fifth part more in this case; because a fifth part more is only allowed by the act of Parliament, in case of adjudications of lands; which was done upon this reason and consideration, That the creditor was forced to take land for his money, and that he did undergo the hazard of tenant's fruits, wares, and public burdens; whereas, when a liquid sum is adjudged in satisfaction of the debt, the same is liable to no such inconveniencies; but the sum adjudged, ought to be ascribed in satisfaction of the debt, and is equivalent as if actual payment had been made; and, if the debt had been paid, at the time of the leading of the adjudication, as the creditor could not have exacted a fifth part more; so neither ought it to be allowed in the case, when a liquid sum is adjudged equivalent to the debt.—Answered, That the act of Parliament makes no distinction betwixt the adjudging of lands and sums of money; but it is statuted in the general, That there shall be adjudged and decerned to the creditor, in satisfaction of his debt, such a part of the debtor's estate, consisting of lands and other rights, which were in use to be apprised, as shall be worth the sum, principal and annualrent, then resting to the creditor; and, albeit the reason given in the act of Parliament is, that in respect the creditor wants the use of his money, and is necessitate to take land for the same; yet, as the statutory part of the act is general, allowing a fifth part more of all rights that were in use to be apprised; it must likewise be extended to heritable sums that are adjudged; and the reason given in the act of Parliament, albeit it mentions only lands; it is only because lands are the subject that most ordinarily is in use to be adjudged; and is not restrictive, but exegetic; and a particular reason in law, doth not restrict the general law: As also, this reason holds likewise in the adjudging of sums of money; because, in that case, the creditor is necessitate to take so much of the sum in satisfaction of his debt, as if the adjudication had been of lands.—The Lords sustained the adjudication, as to the fifth part more; and found the reason of the act of Parliament extended to sums due by infeftments of annualrent, as well as to lands. *

Fol. Dic. v. 1. p. 6. Sir P. Home, MS. v. 1. No 463.

* The samecase is thus stated by President Falconer, January 10. 1683.—Ker being creditor of Edward Ruthven, he did adjudge so much of a right of annualrent, due by the Earl of Callendar to the said Edward, as did amount to the payment of his debt, and a fifth part more, conform to the new act of Parliament made anent adjudications.—It was alleged for Edward Ruthven, That there was no foundation, from the new act of Parliament, for adjudging for a fifth part more of annualrents; seeing the act of Parliament only makes mention of lands; and the reason of the act of Parliament was, That the creditor lay out of his money, and was forced to take land; which did not militate in this case, in respect the Earl of Callendar was personally obliged in payment of the money, upon which the lands were redeemable; and so the creditor adjudging might raise his money.—The Lords sustained the adjudication as to the fifth part more; and found, That the reason of the act of Parliament extended to annualrents, as well as lands.

President Falconer, No 40. p. 22.