Subject_1 ADJUDICATION and APPRISING. Subject_2 NATURE and EFFECT of this DILIGENCE.
Maxwell v. Murray and Wright
Date: 21 March 1634 Case No. No 3.
Effect of a simple decree of apprising.
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One Ker of Redpeth, having disponed his lands heritably to his son and to his wife in conjunct-fee, reserving an annualrent of 500 merks yearly, to be paid forth of any part thereof, to himself during his lifetime; and the said lands, with all right the said Ker of Redpeth had thereof, being thereafter comprised by Alexander Maxwell for debt, and he being, conform thereto, infeft in the lands; and another, viz. Murray, son to the L. Blackbarony, having comprised the said lands, and the said debtor's right, as the said Alexander Maxwell had done, and before Alexander's comprising, but not being infeft in the lands, it was questioned betwixt these comprisers, which of them had right to be ans wered of the said annualrent, reserved to the common debtor, in the foresaid infeftment of fee, whereto the compriser, who was infeft, claimed to be preferred to the other not infeft, albeit he had comprised before him, seeing he alleged, That the reservation of the annualrent to the disponer, could not be bruiked but by infeftment; for the disponer therein behoved to be repute, as if he never had been denuded of the fee of the land pro tanto, but remained, notwithstanding of the fee given to the son, as if he had not been denuded; but that he retained the infeftment thereof, although it was retrenshed to a liferent, and could not be bruiked but by virtue of his prior infeftment, with which it was consolidated, as an usufruct casual, and not formal, which is constituted by a naked liferent, distinct and separate from the property. And the other party contending on the contrary, that he needed no sasine:—The Lords preferred the prior compriser, albeit not infeft, to the posterior, albeit infeft, and albeit both the comprisings were of the lands, and of the debtor's right, and not of the liferent of the annual specifice, which was not specially comprised by any of the parties, but under the general clause, as said is; for they found the same might have been specifice comprised, and the right thereof good to the compriser, without necessity of a sasine: even as the debtor might have disponed the same validly, without sasine, to the receiver; for the said liferent was distinct from the property, and was not inherent in the property, he being denuded of the property, by giving of the fee, and retaining nothing but a liferent of the annualrent, during his lifetime, which never made the see thereof to revive to him, conform to his prior right; for then it could not have expired with his death, but he might have disponed it to another, to be effectual to the receiver after his death, which could not be done; therefore the allegeance was discussed, as said is.
Act. Advocatus.Alt. Nicolson.Clerk, Gibson.
Fol. Dic. v. 1. p. 14. Durie, p. 715.
