Subject_1 ADJUDICATION and APPRISING. Subject_2 LEGAL of APPRISINGS and ADJUDICATIONS.
L Limpitlaw v. Aikenhead
Date: 11 November 1630 Case No. No 1.
The legal reversion of comprisings, expired in seven years from the date of the comprising, not from the time of the allowance, or of the infeftment.
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In a pursuit by the L. Limpitlaw, for the mails and duties of a lodging, pertaining to Alexander Aikenhead, comprised by Limpitlaw, wherein Mr James Aikenhead compeared, and defended himself by an anterior comprising, which was expired; and the pursuer answering, That the seven years were not expired, and that yet he had place to pay the money, for which it was comprised; seeing, albeit there were seven years past, since the date of the comprising, yet that time ought not to be counted to run, nor the prescription to take place, but after the expiring of seven years, after that the comprising was allowed by the Lords, and after sasine thereupon; by the which deeds the comprising began to be made public, and from that time only it should take the beginning of the prescription of the seven years, especially when the question is betwixt two con-creditors, and not betwixt the creditor and debtor; for albeit the prescription began at the date of the comprising, against the debtor, against whom it was deduced, and who could not be ignorant thereof, but that he ought to redeem within the seven years, after the date thereof; yet it was not alike to another creditor, who cannot be counted in mora, if he offer to redeem within seven years, after it became a perfect and public act, which is not before the Lords allowance, at the least before taking sasine thereon; specially seeing the one creditor, who alleges the comprising to be irredeemable, wants nothing, whereas his whole debt and expences are paid to him, and the other creditor is in a hard estate to want all.——The Lords, not the less, sustained the exception and found the prescription of the seven years, after which comprisings are not redeemable, takes beginning, against whatsoever person, either creditor or con-creditor, or others, from the date of the comprising, and neither from the time of the allowance, nor from the time of the sasine; for, if it were never allowed, the comprising not the less being otherwise good, is sufficient, seeing the allowance is only, that charges may be direct against the superiors of the lands, to give sasine; and if comprisers may get sasine, without such charges or allowance, the party needs not to seek allowance; and if the compriser delay to take sasine after his comprising, the con-creditor has the more advantage, if upon his comprising, albeit posterior, he obtain the first infeftment.
Act. Nicolson, Cunningham & Dunlop.Alt. Stuart & Aikenhead.Clerk, Gibson.
Fol. Dic. v. 1. p. 20. Durie, p. 538.*** Spottiswood mentions this case thus:
In an action for the mails and duties of a tenement, between Nicol Limpitlaw and Mr James Aikenhead, it was called in question, whether the seven years, that one, from whom lands were comprised, has to redeem the same, should begin to run from the date of the comprising, or from the time that it is allowed by the Lords, and sasine taken thereupon; it was found without any contradiction, That it begins to run from the date of the comprising.
