[1667] Mor 203
Subject_1 ADJUDICATION and APPRISING.
Subject_2 ADJUDICATIONS and APPRISING pass periculo petentis; and all Defences are reserved contra executionem, unless instantly verified.
Date: Elizabeth Ramsay
v.
Ker of Westnisbet
9 February 1667
Case No.No 22.
Adjudgers of the hereditas jaeens found to have right to be infeft by the superior salve jure; tho' it was not till afterwards that the superior was allowed a year's rent for entering them.
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Elizabeth Ramsay having pursued an adjudication of certain lands, upon the renunciation of Barbara Nisbet, insists upon that member of the summons against the superior John Ker, that he should receive and infeft her; who alleged no process, unless the pursuer show the right of the former vassal, whose heir had renounced; for the pursuer can be in no better case than the apparent heir, who, if she were craving to be entered, behoved to instruct her predecessor's right. The pursuer answered, That her adjudication against the defender, as superior, is in common form, which has ever been sustained upon good ground, because a creditor has no interest to have his debtor's rights, when he is seeking adjudication, which must be his title to demand the rights; but the superior is obliged by law to receive the adjudger, without instructing any right farther than the adjudication, which has been frequently so found in the case of apprisers.
The Lords having considered the case, and parallel with that of apprisers, found this difference, that superiors got a year's rent for receiving apprisers, but not adjudgers; yet in respect of the common custom of these summonses, they repelled the defence, and decerned the superior to receive the pursuer, salvo jure cujuslibet et suo.
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