Scottish Court of Session Decisions

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

Fotheringham of Balandean,
v.
Margaret Butter

Date: 27 December 1705
Case No. No 11.

An adjudger, though not within year and day, having charged the superior, admitted pari passu with a prior adjudger, who obtained a charter before the charge, but omitted to take infeftment till long after.

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In the competition for the mails and duties of Buttergask, Fotheringham of Balandean, and others, having produced the first adjudication, Margaret Butter was admitted pari passu, in respect that she produced a charge against the superior: but a petition was presented by Fotheringham, and others, craving preference, in respect they produced a charter from the superior, prior to the charge whereupon their author stood infeft.

It was answered: The charter was, indeed, dated the 1st of December 1694, three or four months prior to the charge on Butter's adjudication: but the infeftment did not follow till the 15th of May 1697, above two years after the charge. And seeing the obtainers of the charter were not careful to complete the same by sasine, which only gives a real right to the lands adjudged, the charge is a legal and complete diligence of its own nature, as effectual as if infeftment had followed of that date, or so soon as it could have been expede. If the superior had given a charter, then the superior's partiality, in granting a charter to one comprising, and refusing it to another, cannot prejudge the creditor who charged, seeing the obtainer of the charter did not complete it till two years after the charge.

“The Lords adhered to their former interlocutor, admitting the last adjudger pari passu, in respect of the charge, and the first adjudger's negligence.”

Fol. Dic. v. 1. p. 17. Dalrymple, No 69. p. 89. *** Lord Fountainhall thus states this case:

In a competition for the mails and duties of the lands of Walton of Blair, betwixt Margaret Butter, relict of William Haliburton, and Fotheringham of Ballandean, and others, she craved preference on her adjudication; because, in the terms of the 62d act, parl. 1661, her author had first charged the superior to infeft her, which, by the current of decisions since, has been sustained to make it the first effectual apprising, or adjudication. Answered, for Fotheringham, That he had obtained a charter from the Earl of Strathmore; superior, three months prior to your charge; and, though I be not infeft till after it, yet my diligence, being completed by infeftment, will always be preferred to you who have rested on a naked charge, and proceed no farther. Answered, Through your charter be prior to my charge, yet the sasine taken thereon is two years posterior; and so there being so visible a cessation and delay in perfecting the right, I must be preferred. The Lords considered, if there had been but the intervention of at few days, or weeks, betwixt the charter and sasine, that a charge coming betwixt might have had the less to plead; but there being a mora of two years, the obtainer of the charter was plainly negligent; and, therefore, found her the first effectual adjudger, but brought Fotheringham in pari passu with her; for our law seems to require no more diligence at apprisers' or adjudgers' instance, within the legal, but only a charge against the superior. But the question occurred, this same session, in the case of one Grant, a wright in Edinburgh, if, after the legal is expired, a simple charge against the superior can compete with an actual infeftment, expede on an adjudication or comprising; and what the effect and import of such a charge is within the legal, for making a rule in time coming in all such competitions.

Fol. Dic. v. 1. p. 17. Fount. v. 2. p. 303.