(1771) 6 Paton 783
CASES DECIDED IN THE HOUSE OF LORDS, UPON APPEAL FROM THE COURTS OF SCOTLAND.
House of Lords,
Subject_Adjudication — Decree of Expiry of the Legal — Pluris Petitio. —
Held it incompetent to reduce a decree of expiry of the legal of an adjudication to which the objection of pluris petitio was stated, to the effect of redeeming the lands from a purchaser, but that it was competent to open up the same to the effect of making the adjudger and seller of the lands account for the price received.
The appellant purchased for £366, 13s. 4d. sterling, a farm called Woodside, having a coal-mine in it.
On 11th February, the appellant borrowed from Allan Lockhart £155, 1s. 1 1⁄3d., for which he gave him an heritable bond upon this estate.
In February 1742, he paid Mr Lockhart £15, 11s. 1d., per receipt; being two years' interest on his bond.
Upon this bond Lockhart adjudged the appellant's lands of Woodside, for the accumulated sum of £204, 10s., giving credit only for £12, received on account, instead of £15, 11s. 1 ½d.
Thereafter, the appellant borrowed a further sum of £60 sterling upon his bond, 10th December 1744; and some time thereafter the appellant made payment to Lockhart of the sum of £44, 5s. on account.
Upon this last mentioned bond, Lockhart obtained an adjudication of the lands of Woodside for the accumulated sum of £85, 5s., so that of £215, 11s. 1d., the amount of the whole original sums borrowed from Mr Lockhart, £44 having been paid by the appellant to account, there only remained, the appellant stated, a debt of £171, 6s. 1d. charged by the adjudication upon the estate for which the appellant had paid the purchase money of £366, 13s. 4d., and had laid out as much more on improvements.
James Shearer acquired right from Lockhart to these two adjudications; and he subsequently managed to obtain a lease of these lands from the appellant's brother in favour of one Gordon, but he being ejected from possession, Shearer then procured possession of the lands under his adjudication.
In January 1754, he brought an action of declarator
Jan. 21, 1758.
The appellant, on his part, brought an action for count and reckoning against Shearer, and for reducing his adjudication and debts. These two actions were conjoined, and of this date, it was found that Shearer was not entitled to decree of expiry of the legal.
June 22, 1758.
Thereafter, however, the respondent obtained decree decerning “in the declarator of the expiration of the legal in terms of the libel, and assoilzies the said James Shearer from Hutchison's reduction and haill conclusions thereof, and decerns.”
The lands were then sold to James Young; and in a few years thereafter they were again sold to the other respondent, Dr Mackinlay.
The appellant then brought the present action of reduction of the above decree, stating the following reasons:—1st, That Lockhart, the original creditor, having neglected to give credit for the whole of the payments received by him, a pluris petitio rendered the adjudication unavailable to be the ground of an expired legal, it being an established rule of law, that adjudications liable to the objection of a pluris petitio, though permitted to stand as a security for principal and interest, are held to be unavailable for carrying off the absolute ownership of an estate upon decree of an expired legal. 2d, That the appellant had suffered great loss by the lease impetrated from his mother to Gordon, Shearer's confident, because the lands were let at a rent far below their value. 3d, By the interlocutor of the Court of 20th January 1758, finding Shearer not entitled to the benefit of an expired legal, and that the appellant had right to redeem his lands upon payment of the sums that should be found due to Shearer, he had a clear right to open up the decree of expiry of the legal, if not to the effect of redeeming the lands, at least to the effect of making his heirs account for the price at which the lands were sold to Mr Young.
Dec. 1, 1768.
The Court, of this date, pronounced this interlocutor:
“Find that it is not competent to open up the decree of declarator of the expiry of the legal of the lands of Woodside, in the year 1758, in so far as it concerns the interest of Dr Mackinlay, the last purchaser; but find it competent to open up the said decreet ad hunc effectum, to make the heirs of James Shearer liable to account to the appellant for the price at which the lands in question were sold to James
Young, and remit to the Lord Ordinary to proceed accordingly. On reclaiming petition, the Court adhered.
Feb. 9, 1769.
From these interlocutors, so far as they refused to open up the decree under reduction as to the interest of Dr Mackinlay and James Young, and so far as they did not find the appellant entitled to redeem and recover his estate, the present appeal was brought to the House of Lords.
After hearing counsel,
It was ordered and adjudged that the interlocutors complained of be, and the same are hereby affirmed.
Counsel: For the Appellant,
For the Respondents, Al. Wedderburn.