Subject_1 ADJUDICATION and APPRISING. Subject_2 ADJUDICATIONS and APPRISING pass periculo petentis; and all Defences are reserved contra executionem, unless instantly verified.
Scot v. Elliot of Stobs
Date: 11 March 1636 Case No. No 20.
Superior must receive the appriser, sed salvo jure cujuslibet et suo.
Click here to view a pdf copy of this documet : PDF Copy
Margaret Scot having comprised lands, and charging Gavin Elliot of Stobs as superior, to infeft her; who suspending, that he was heritable proprietor of the said lands, and had acquired the right from those who, and their authors, have ever been heritable proprietors; neither was any of his authors, or himself, superior at any time to that person, from whom she had comprised the lands, nor ever had acquired any right from that person, of whom her alleged debtor is alleged to have holden the said lands; and, it is against reason, that he should be compelled to grant a warrant to sease any in his heritage, where there is no right of superiority derived in his person, nor yet of property, from those who are alleged to be superiors to the compriser's debtor, but flows aliunde from other persons; notwithstanding whereof, the letters were found orderly proceeded, and the allegeance was repelled; but the Lords declared, that the infeftment, which the compriser should receive from this suspender, being done for obedience of this sentence, should be always without prejudice of the superior's right of property prout de jure, and that thereby his right should not be hurt; and it was thought he could not be a loser, receiving a year's duty for the lands, and bruiking the lands also, if he had a better right thereto than the compriser. Item, In this cess the Lords found, that no defalcation ought to be made of the year's duty payable to the superior, for the entering of the compriser, through the lands being liferented by the relict of the debtor, from whom the comprising was deduced; but declared, that seeing this defender was in possession, by virtue of her liferent, as acquired by him from her, or as in her name, that during her lifetime, that duty should not be paid to the superior, but ordained the compriser to find caution presently to pay that year's duty, immediately after the liferenter's decease.
