Subject_1 SOLIDUM ET PRO RATA. Subject_2 SECT. XIV.
Executors how liable? - In a Process must they all concur, or have they Action pro rata?
William Salmon v. Executors of John Orr
Date: 22 July 1630 Case No. No. 75.
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Two executors being confirmed, one of them cannot be pursued in solidum, except it be replied, that the executor pursued intromitted, or might have intromitted with as much as might have satisfied the pursuer.
Fol. Dic. v. 2. p. 382. Auchinleck MS. p. 15.Durie reports this case:
John Orr being infeft in an annual-rent out of a tenenement pertaining to Salmon, redeemable upon 800 merks, and the said John Orr thereafter resigning the said annual-rent to one of his bairns, who thereupon was infeft, reserving his own liferent; thereafter the annailzier of the annual-rent to John Orr, not knowing of the infeftment given by John Orr's resignation in the hands of the Bailies of Edinburgh, to his bairn, pays the sum whereupon the annual-rent was redeemable to the said John Orr, and obtains his renunciation. After the decease of the said John, his said daughter being infeft, obtains poinding of the ground for the said annual-rent, notwithstanding of the renunciation granted by the father, whereupon the heritor of the land being distressed, pursues warrandice of the said renunciation granted to him by the father, against the two executors confirmed to the father, wherein he convenes them conjunctly and severally, to warrant the same, and for that effect, to make payment of the principal sum paid to the father, and of the annual-rent thereof paid since then to the daughter, of the years for which she had obtained decreet of poinding. In which process the Lords found, that there being two executors, they could not be convened but for their own halves, and not one of them for all, seeing one of them was not alleged to have intromitted with so much as would pay the sum acclaimed. And it being also alleged, that this action of warrandice being for warranting of an heritable infeftment, that fact was not prestable by the executors, but by the heir; the Lords repelled this allegeance, and found the same prestable by the executors, viz. to pay a sum for which the defunct had given renunciation of an annual-rent; but because the annual-rent was for more than ten for each hundred, the Lords found, that the executors should refund no more than that proportion, albeit that decreet was obtained by the daughter against this pursuer, to poind for theannual-rent libelled, which was more than ten; for that was his own fault, who proponed not that allegeance in that pursuit, without prejudice to him to repeat from the daughter what he had paid, more than the annual-rent allowed by act of Parliament.
