(1787) 3 Paton 64
CASES DECIDED IN THE HOUSE OF LORDS, UPON APPEAL FROM THE COURTS OF SCOTLAND.
House of Lords,
Subject_Succession to Adjudications — Interest — Heritable or Moveable. —
Whether the accruing interest in an adjudication belongs to the heir or executor? Held, in a question of compensation, that the interest accumulated and accruing, in an adjudication, is heritable, and belongs to the heir, and therefore did not fall under the husband's jus mariti.
Captain Allan was, before his death, owing Andrew Young, the respondent's father, the sum of £12,000 Scots, (£1000 sterling), for which debt he adjudged Allan's estate of Cairston for the accumulated sum of principal and interest, amounting to £18,305. 10s. Scots.
Andrew Young having died, was represented by his only child, the respondent Margaret Young. On Captain Allan's death the appellant succeeded to his estate, and being anxious to redeem the same from the adjudication, offered to do so; but insisted that he had a right to compensate or set off against that part of the accumulated sum and interest which belonged to Margaret Young, a sum of £300 owing by her husband, James Gordon, to him, which being refused, he brought a bill of suspension to try the question.
July 5, 1785.
Dec. 23, 1785.
Jan. 31, 1786.
The Lord Ordinary, of this date, found “That Mr. Gordon, Margaret Young's husband, has right to the annual-rents arising from the accumulated sum in the adjudication, jure mariti, and that during the subsistence of the marriage; therefore sustains the reasons of suspension, as
Against these interlocutors the present appeal was brought.
Pleaded by the Appellant.—The one-half of this debt belongs to Mrs. Margaret Young or Gordon. On this sum interest runs, and it therefore follows that the interest due upon that sum falls under the jus mariti of her husband. For although an adjudication renders heritable the accumulated sum for which it is led, yet the interest accruing thereon, from the time it becomes due, is a personal subject, falling under the executry like any other arrear of rent or interest, and therefore compensation ought to be sustained to that extent.
Pleaded for the Respondents.—They jus mariti of the husband over his wife's estate, does not extend to her heritable estate. This right extends only to the moveable estate; and the adjudication here makes the debt heritable, so as to deprive him of all benefit, under his jus mariti, over the same. Nor can he ever have any claim over the interest of that sum, because an adjudication is a diligence resorted to, in order to recover payment of the debt out of the real estate, and not to afford a security for an annual income. The interest, therefore, accruing upon it, cannot be considered in the same light with the arrears of interest in an heritable bond, for these are separated from the principal as they fall due, but, in an adjudication, there is no obligation to pay interest annually; and it has been long settled, that the interest accruing on an adjudication descends, along with the principal, to the heir, and therefore is not covered by the jus mariti; and so compensation here is not pleadable.
After hearing counsel, it was
Ordered and adjudged that the interlocutors be affirmed.
Counsel: For the Appellant,
For the Respondents, R. Dundas, Alex. Wight.
Note.—This case is shortly noticed in M. 5545, but it does not seem to be noticed that the case was appealed. It is there stated, that “the Court of Session declined entering into a discussion of the question, as a departure from a general rule so solemnly established;”