Subject_1 ADJUDICATION and APPRISING. Subject_2 GENERAL CLAUSE in APPRISING and ADJUDICATION.
Fairholm v. Rentoun and the Countess of Leven
Date: 21 November 1673 Case No. No 1.
An apprising is led, of an infeftment of annualrent. The letters contain the words, and all other right. The charge is given to infeft in the land, not in the annualrent. This is objected to; but on account of the general words in the apprising, the charge is sustained.
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The Earl of Leven having granted bond, of 20,000 merks to the Laird of Lamertoun, with an infeftment ef annualrent thereon, in the barony of West Nisbet; The same being apprised, first by Mr John Fairholm, he charged the Countess, on the apprising, to receive him; and, thereafter, it was apprised by Rentoun, Justice Clerk; and the Countess having raised a double poinding: In the competition, it was alleged, for Mr John Fairholm, That he ought to be preferred; because he had the first apprising, and the first charge. It was answered, That, though Rentoun's apprising was posterior, yet it was preferable; because infeftment had proceeded thereupon: and Fairholm's charge was informal, and null; because the Countess was charged to receive him into the lands; whereas the right was an annualrent furth of the lands, which is a distinct right from the lands, requiring distinct solemnities; neither did the apprising apprise, or adjudge, an annualrent; nor did the horning charge to infeft in an annualrent, but to infeft in the land. Whereupon, the Lords found already, That the charge was null; and, if the Countess had given obedience, and infeft Fairholm in the land, and Rentoun in the annualrent, he would have had the only right. It was replied, That apprisers, who cannot know their debtor's rights, can do no more but apprise the ground, right, and property, and all other right; and, if they charge accordingly, it is sufficient to reach an annualrent, or any other just right: and there is more in this case, for the apprising is not only of the property, and all other right, but specially of the bond of 20,000 merks, and the infeftment following thereupon, which is the infeftment of annualrent, which is also contained in the allowance, and is related in the horning; and though, in the will, it bears only to infeft in the land, yet it bears conform to the apprising and allowance, and the charge is conform: And, at the time of the former interlocutor, the apprising was not produced; and the charge was only to infeft in the land, and mentioned not any other right, but the apprising, being related to, and special; it is sufficient.
The Lords sustained the charge, and preferred Fairholm.
