Relief among Co-debtors, and whether the Creditor, upon payment, is bound to assign in order to operate relief.
Adamsons v. Lord Balmerino
Date: 26 June 1662 Case No. No 3.
An annualrent being payable out of two tenements, which came afterwards into the hands of two different singular successors, it was found, that the annualrenter might uplift the whole out of any one of the tenements, assigning against the other for relief.
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Adamsons being infeft in an old annualrent out of two tenements in Leith, and having thereupon obtained decreet of poinding the ground in anno 1661. and insisting for poinding one of the tenant's goods, now belonging to the Lord Balmerino, for the whole annualrent, Balmerino suspends, on these reasons, 1mo, The heritor, against whom the decreet of poinding was obtained, and all his tenants, were dead; and therefore it can receive no summar execution against the present heritor and his tenants, but there must be a new decreet against them. 2do, Balmerino hath peaceably possessed this tenement 20 or 30 years, and thereby hath the benefit of a possessory judgment, by which his infeftment cannot be questioned without reduction and declarator. 3tio, The English possessed this tenement several years by the public calamity of war; and therefore there must be deduction of these years annualrents, as is frequently done in feu-duties. 4to, The two tenements being now in the hands of different singular successors, Balmerino's tenement can only be poinded for a part of the annualrent. The pursuer answered, That poinding of the ground is actio realis, chiefly against the ground; and therefore, during the obtainer's life, it is valued, not only against the ground, while it belonged to these heritors and possessors, but against the same in whosoever hands it be, that the moveable goods therein, or the ground right thereof, may be apprised. To the 2d, Annualrents are debita fundi, and a possessory judgment takes neither place for them, nor against them. To the 3d, Though, in some cases, feu-duties cease by devastation, that was never extended to annualrents, due for the profit of a stock of money. To the 4th, The annualrent being out of two tenements promiscuously, the annualrenter may distress any part for the whole, in whosoever hands the tenement may be.
The Lords repelled all these defences, but superseded execution for one-half of the annualrent for a time; and ordained the suspender to give commission to Balmerino to put the decreet in execution against the other tenements for its proportion, for his relief, medio tempore.
