Litigious by denunciation upon apprising, and citation upon adjudication.
Subject_3 SECT. I.
Rights granted in consequence of an antecedent obligation. - Alienation after denunciation. - Adjudication led during the dependence of a ranking and sale.
Gardin v. -
Date: 20 February 1627 Case No. No 69.
A compriser preferred to the mails and duties of the lands comprised, notwithstanding of a tack let by the common debtor, after the comprising, to another creditor, for his security and payment.
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In an action of Adam Gardin, litster, against——,for the mails and duties of a tenement, whereto he had right, by virtue of a comprising and infeftment following thereupon, the defender clothing himself with a tack of the said land, set to him by that person from whom the lands were comprised, the Lords preferred the compriser, infeft as said is, to the tacksman, because the tack was set after the comprising deduced, which could not be done in prejudice of him who had comprised the land from the setter of the tack before the setting thereof; neither was this duply respected, that the comprising was deduced for a small sum, far within the worth of the lands; and so that the defender alleged, that the tack and his comprising might both subsist, his tack being set to him until the time the sum addebted to him by the setter was paid, for payment of the duty therein contained; and the land comprised being far more in value and worth than both the parties’ sums; so that it were against equity to prejudge the excipient of his sum, which he could never have, if his tack should be made unprofitable to him; which was repelled, seeing if the comprising was for a little sum, another creditor might easily redeem the land.
Act. Kay.Alt. ——.Clerk, Gibson.
Fol. Dic. v. 1. p. 557. Durie, p. 278.
