A Superior may redeem Apprisings led against his Vassal.
Black v. Lord Pitmedden
Date: 5 March 1634 Case No. No. 82.
The superior may redeem the lands before expiry of the legal.
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One Black having comprised some lands, whereof Pitmedden was heritor, and having charged him as superior, to receive him upon the comprising, after the letters were found orderly proceeded, notwithstanding of Pitmedden's allegeanee that he was heritor, because his heritable right was acquired from the L. Meldrum, who was heritor of the lands, and was debtor to Black in that sum, for which the comprising was deduced, and for which he had affected the land with some diligence, before Pitmedden's right was acquired, so that Pitmedden remained superior to the compriser, but his right of the property was not sufficient against the compriser; and Pitmedden claiming a year's duty for entering of the compriser, the Lords allowed to him retention of a year's rent of the land therefore, during which he possessed the land, by virtue of his heritable right, albeit that heritable right was not found sufficient to exclude the compriser. After which sentence Pitmedden suspending again de novo, upon the act 36. Parliament 5. James III. whereby it is provided, that the superior may take the lands comprised to himself, he satisfying the compriser of his sum, and expenses, which he offered presently to do; which he alleged is the rather receivable from him, who had acquired this heritable right, and was prejudged therein by this compriser; and which comprising being yet unexpired, as any other creditor might comprise the legal, and thereby redeem the same; so with more equity ought he to be admitted to out-quit the comprising, that his own right might convalesce;—and the comprises answering, That it was not time now to make this offer, because he had allowed, by the Lords' ordinance, a year's rent to be retained by the suspender, in his own hands, to which he had no right, and which he had possessed, for satisfaction of the year's duty acclaimed by him as superior, for entering of the compriser; which allowance must be equivalent, as if he had paid and really delivered a liquidated sum for that year's entry, quo casu if he had so paid, the suspender's offer could never have been thereafter received; and where it is said, that the suspender, as creditor, may do this, as if the legal were comprised and redeemed from the compriser, (the comprising being yet unexpired;) he answers, that this offer cannot be respected upon that pretence, neither can it be admitted, except the legal were comprised, and redemption used by virtue thereof; which not being done, he cannot so summarily evacuate the effect and force of his comprising, by and against all form and order of law;—the Lords repelled the allegeance, and found the reason of suspension relevant; and found, that the suspender paying the principal sum of the comprising, with the whole annual-rents thereof since that time, and the expenses of the comprising, and the charges thereof, that then the Compriser should assign his right to the suspender; and found, that the allowing to the suspender a year's duty of the land, the same being possessed by him, was not alike as if the compriser had actually paid a year's rent to him, and that he had received real payment thereof, and therefore that that allowance was no cause why the reason should not have been found relevant.
Act. Stuart.Alt. Baird.Clerk, Hay.
Fol. Dic. v. 2. p. 411. Durie, p. 709.
