Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN BAIRD OF NEWBYTH.

George Clappertoune
v.
The Laird of Torsonce

Date: 20 January 1666

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There being an apprising deduced in January 1645, at the instance of Torsonce, against Ramsay of Bewick, of the lands of Wylliecleugh and Kippielaw; there was a second apprising of the said lands, within fourteen days thereafter, at the instance of Mr Alexander Kinneir, against the said Ramsay; whereunto George Clappertoune has right by progress: who having used an order of redemption of the first apprising against Torsonce and the apparent heir of Ramsay of Bewick, and others, and that before Whitsunday 1664,—to which time the expiration of the legal of comprisings which were not expired in January 1652, are prorogated; and craved that the order might be declared, and that the first comprising might be found satisfied; in so far as he offered him to prove that the first apprising wras satisfied within the year of the legal, as the same was prorogated by the late Act of Parliament, either by disposition made by the first compriser of some of the lands apprised, whereof the worth doth far exceed the sum due by the first appriser, or by the sums of money received by the first compriser from those to whom he hath disponed the lands, and by his and their intromissions with the rents and duties of the lands within the years of the legal as it is now prorogated.

To which it was answered for Torsonce, the first appriser, That there can be no declarator upon the grounds foresaid, except it was alleged that the apprising was satisfied within seven years after deducing thereof; for, by the law then standing, after expiration of the legal, he might have lawfully sold or given away the lands, or any part thereof, for any price he pleased: likeas he disponed the lands of Wilycleugh to the apparent heirs of Bewick, for whom they were apprised for 11,000 merks, and retained the lands of Kippielaw for making up what he wanted of the sums due by the apprising. And the effect of the late Act of Parliament is only for redemption of lands comprised from the persons who have them now, but noways to strike against nor oblige the first appriser, who has the same from the heir. 2do. Any intromission with the rents, after [expiring] of the first seven years of the apprising, which was then the legal thereof, cannot be [ascribed] in payment and satisfaction of the apprising; because the appriser, and those who had right from him, intromitted bona fide therewith as their own; they having, by the laws then standing, an irredeemable comprising: So that there can be no declarator, except the pursuer would allege that the first apprising was satisfied by the price of the lands really received, or by intromission with the rents within the first seven years.

The Lords repelled the allegeance, and sustained the declarator, in respect of the reply founded upon the Act of Parliament 1664, betwixt debtor and creditor; and found, That the haill lands, right of wadset, teinds, and other rights contained in the first apprising, were redeemable from the defenders at Whitsunday 1664, and still are redeemable, by virtue of the order of redemption libelled: the pursuer always refunding to the heirs, or others having right from the deceased —— Ramsay, the sum of 11,000 merks, payable by him for the lands of Wylliecleugh and others to the Laird of Torsonce, who disponed the same to him; and that before they shall be holden to renounce their right to the said lands of Wylliecleugh. And found, that the sum of 11,000 merks, and maills and duties of the said [haill] lands, since the Laird of Torsonce and others having right from him entered to the possession thereof, till Whitsunday 1664, ought to be imputed to the payment of the sums due to him, by virtue of his said apprising, in haill or in part; the annualrents always of the said sum of 11,000 merks being deduced out of the maills and duties of the said lands of Wyllieclcugh, and allowed the said —— Ramsay, and others having right from him. This being reported and found, as said is, the act was stopped upon a petition from the defenders; but thereafter, upon the 20th of February, extracted, as is above set down.

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