Subject_1 ADJUDICATION and APPRISING. Subject_2 RANKING of ADJUDGERS and APPRISERS.
Laird of Balfour v. Mr William Douglas
Date: 4 July 1671 Case No. No 9.
The coming in pari passu, calculated from the date of the apprising, not of the infeftment.
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The Earl of Airlie's estate being apprised by Mr William Douglas since 1652, after the legal was expired, Mr William was infeft; and, after his infeftment, the Laird of Balfour apprised the same land, and thereupon pursued the tenants for mails and duties. It was alleged for the first appriser, that he must be preferred; 1mo, Because he has the only right, having an apprising expired, and infeftment thereon, before the pursuer's apprising was led, so that eo momento that he was infeft upon his expired apprising, the common debtor was fully denuded, and there was no right of reversion, or any other in his person that could be apprised thereafter. It was answered, that by the act of Parliament 1661, between debtor and creditor: It is provided, that all apprisings led within year and day of the first effectual apprising, shall come in therewith pari passu; and therefore, the pursuer having apprised within year and day after the first appriser's apprising became effectual by infeftment, he must come in with him pari passu by the said act, which makes no difference of expired, or unexpired, apprisings; and, by that same act, the debtor is not so denuded by the expiring of the legal and infeftment, but that year and day is still allowed to subsequent apprisers, which, in effect, is a prorogation of the legal as to con-creditors. It was answered, that the act of Parliament is opponed, bearing that apprisings before, or within year and day after the first effective apprising shall come in pari passu, as if one apprising had been led for all, which necessarily imports the calculation of the year to be from the date of the first effective comprising, and not from the date of the infeftment or diligence; for the coming in, as if one apprising had been for all, must relate to the decreet of apprising, which, as it is clear by the letter of the statute, so also by the narrative and motive thereof, bearing that creditors die not know the condition of their debtor's estate, which might be apprised before they could do diligence; whereas, before, they had only the benefit of reversion for remedy whereof, the Parliament brings in all apprisings that are before, or within a year after the first effectual apprising, which before would have carried the sole property, and fictione juris, states all these apprisings as led in one day, so that the remedy is sufficient, by having a full year after the date of the apprising, and correctory statutes are to be strictly interpreted; and, if the date of the diligence be the rule, an apprising, after twenty years, might be brought to admit a new one deduced after all that time, and not only so, but the mails and duties would belong proportionally to the last appriser, for twenty years before it was led. It was answered, that the year indulged by this act of Parliament to con-creditors, must be from the time the apprising is effectual, for the words of the statute bear all apprisings before, or within a year after, the first effectual camprising, &c. so that the year must not run from its being an apprising, but from its being an effectual apprising; and so from the infeftment or diligence; neither is the inconvenience shunned otherwise, for the only way then known for publication of real rights, was the register of sasines, and not the register of the allowance of apprisings, which is only made necessary by an act since, and it is very easy to make similar executions of apprisings, by taking away the copies of denunciation of the ground, and citation at the dwelling house of the debtor, but if once a sasine be in the register, all provident men take notice thereof, and albeit a charge be sufficient instead of a sasine which is not registrate, yet the ordinary way of completing apprisings, which the law notices, is infeftment; and seeing apprisings are now rigorous rights, carrying any estate without consideration of the value, acts correctory of them ought to be Extended ex æquo, and the more ways con-creditors have for getting notice of the apprising of their debtor's estate the better; neither are the evil consequences, upon the other hand, of any moment; it being the first appriser's fault (if not his fraud) that he obtains not infeftment, nor does diligence therefor; for he may of purposely dormant, not only till year and day run, but until the legal expire, and thereby cut off the diligences of all other creditors; as in this very case, the irredeemable right of an earldom shall be carried for L. 1500, and all the other creditors excluded, so that the apprising is so far from making the case better, that it makes it much worse, as latent and fraudulent; for it cannot be imagined, that if the second appriser had known that the first apprising was led, but that he would have used diligence within the year, at least within the legal; for so soon as he law a sasine in the register, he did immediately apprise.
The Lords preferred the first appriser, and excluded the second; and found, that the year is to be reckoned from the date of the first effectual apprising, and not from the diligence, whereby it becomes effectual. In this process, the Lords sustained this reply, that the first apprising was for the behoof of the common debtor, or his eldest son; and that they would purge the same, by payment of what sums were truly paid for it to the appriser, according to the said act of Parliament 1661, without any reduction or declarator.
