A Superior may redeem Apprisings led against his Vassal.
Sir Francis Scot of Thirlstoun v. Lord Drumlanrig
Date: 10 June 1671 Case No. No. 83
After an apprising or adjudication has been purchased by the superior, it is competent to the debtor to redeem it, upon payment of the like sum, without paying an year's entry.
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Sir Francis Scot having obtained decreet of adjudiction of the lands of Brankinside, and others, and having charged the Lord Drumlanrig to receive and infeft him, he suspends on this reason, that he was willing to satisfy the sums contained in the adjudication, upon assignation made to him thereto, and so was not obliged to receive the charger. It was answered, That albeit King James the Third's act of Parliament anent apprisings doth provide, that for a year's rent, superiors shall receive apprisers, or otherwise shall take the land to themselves and pay the sums; yet that gives not the superior an option, but bears, failing of paying a year's rent, the superior may satisfy the sums, and take the land in his own hands; but where that was offered, it was never by custom or practice allowed, that the superior should exclude an appriser; but whatever were in the case of apprisings, that power was never granted to superiors in adjudications, whereupon they were Still obliged to receive adjudgers without a year's rent, until the late act of Parliament; and the said old statute giving an option to the superior, is not to be extended to adjudications, nor was it ever by any subsequent law or consuetude extended thereto. It was answered, That by the ancient feudal law, a superior could not have been compelled to receive a stranger vassal, albeit a creditor, yet the statute of King James the Third did remeid this in favours of creditors, and obliged superiors either to receive apprisers for payment of a year's rent, or else to pay the sum apprised for; but long after that time, there was no mention of adjudications, which were a supplement of the Lords, that where the apparent heir being charged, did renounce, the creditor should not be frustrated, but might obtain adjudication of the lands, contra hæreditatem jacentem; which, except as to that point of form, is the same with an apprising, under another title; and albeit as to the year's entry, the Lords would not extend the same to an adjudication; it was upon this special reason, that in the act of Parliament 1621, anent apprisings, the same is declared redeemable upon the sums apprised for, and a year's rent for the entry; yet in the very next act in the same. Parliament anent adjudications, the year's entry is left out, which was thought by the Lords to be done by the Parliament of purpose, and so not to be extended by the Lords; but otherwise, the same reason was for the entry in adjudications as in apprisings, which the Parliament has now found by their late act; and therefore the matter of the entry is not to be drawn in consequence to the superior's option.
The Lords found that the superior had his option, and might refuse to receive the adjudger, offering to satisfy the sums in his adjudication, upon assignation made to him thereof; and declared that the same should be redeemable from the superior upon the like sums without any thing for a year's entry; and that in all things else, the superior and vassal should be in the same case as if the adjudger had been entered to that effect.
Fol. Dic. v. 2. p. 411. Stair, v. 1. p. 731.*** Gosford reports this case:
Sir Francis Scot having adjudged the lands of Brankenside and Coats, and charged the Lord Drumlanrig to enter him his vassal, he did suspend upon this reason, That by a late act of Parliament, adjudications and comprisings were declared to be of a like nature in omnibus, but so it is, that if the charger had comprised, and thereupon charged him to enter him his vassal, by an act of Parliament of King James the Third, all superiors are only liable to enter the compriser upon the payment of a year's duty, or to satisfy the sums contained in the comprising, and take the right thereof to himself, which he was now willing to do.
It was answered, That the reason was nowise relevant, as being founded upon the act of Parliament, because the adjudication, which is the ground of the charge, was prior to the late act of Parliament, whereby it is only statuted, that a year's duty should be paid by adjudgers as well as comprisers, but that an act can only have respect to the future; and as to that act of King James the Third, it being special as to comprisings, it cannot be extended as to adjudications, which were not then in rerum natura, they being only allowed as a legal course against apparent heirs by act of Parliament in King James the Sixth's time, in anno 1621, by which act superiors are ordained to receive the adjudgers, without so much as the payment of a year's duty, and have not in their power or option to enter, or to refuse, upon payment of the sums contained in the adjudication; and accordingly adjudgers did never pay any composition for their entries until the late act of Parliament; and if this election were sustained in favours of superiors, either as to adjudgers or comprisers, which was never before found by any decreet, it would be of great importance as to all debtors whose lands are comprised or adjudged, they being in a far worse condition to have to do with their superiors than their creditors, when they should use an order of redemption, and crave possession of their lands. It was replied for the suspender, That he was founded in jure communi, and by the feudal law was not obliged to receive a vassal against his will, and albeit the act of Parliament 1621 ordaining adjudications to proceed against apparent heirs, who renounce to enter heirs to their predecessors, to be a good right to the lands adjudged, and that they shall be redeemable as comprisings by a second or third adjudger, or the apparent heir, if he shall be reponed in integrum against his renunciation upon minority; yet there is nothing in that act which obliges the superior to enter the adjudger; and if he should satisfy the sums, and take a right to the adjudication, the vassal, or a second adjudger, cannot pretend any prejudice, because the lands may be redeemed from the superior in the same manner as from the first adjudger; and, upon payment of the sums contained in the adjudication, the superior will be obliged to enter the vassal again to his own lands.
The Lords having seriously considered this case, and resolving to make it a practick, and to be a leading case, did find the reason of the suspension relevant, and that superiors offering to satisfy the sums contained in the adjudications, the adjudgers were obliged to assign the same, whereby they might bruik the lands as their property; but, in case of redemption by the apparent heir, they found, that he should enter him again vassal, without payment of a year's duty as composition; which they did likewise find as to comprisings, where the debtors should use an order of redemption within the legal against the superiors; which they did upon these considerations, 1mo, That the election and option of superiors to enter comprisers, or to satisfy the debt, was expressly given by the act of Parliament 1469, putting it in their option; and that privilege not being taken from them by any act or decision of the Lords, they had good right thereto; and adjudgers being in no better condition than comprisers by the act of Parliament 1621; and the reason being as strong for superiors to crave that benefit in adjudications as in comprising, they being alike founded in jure as to both, that they should not be obliged to receive a vassal against their will, but by satisfying his debt might purge his interest, and so take off the creditor's prejudice; they thought it just, that superiors should be in that same condition as to adjudgers as they are to comprisers by the act of Parliament, it being special and alike, there being par ratio; 2do, The superiors being founded in jure cemmuni, and by the feudal law not being obliged to change a vassal, the privilege granted to comprisers by the act of Parliament being special, and the like not granted by any posterior act to adjudgers to enter them, or pay the sums contained in the adjudication, they thought it a favour to put them both in the like condition, privileges being stricti juris; as likewise, that the debtor's redeeming from the superior should be free of a year's duty, whereof they prejudged themselves, it being done by the adjudgers or comprisers in case they were entered, and so were in a better condition, and could pretend no prejudice by using an order against the superior, who ought to possess these lands as his property, the apparent heir having renounced to enter; and so upon the principles both of law and equity, the Lords decerned ut supra.
