Subject_1 ADJUDICATION and APPRISING. Subject_2 GENERAL CLAUSE in APPRISING and ADJUDICATION.
Nisbet v. Mein
Date: 23 January 1674 Case No. No 2.
An apprising of a tenement, with all right competent to the debtor; found to carry an infeftment of annualrent, the debtor had over the tenement.
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Umquhile Henry Nisbet did infeft his son, James Nisbet, in a tenement in Edinburgh, excepting a merchant-buith of the tenement; in which buith he infeft William Nisbet, his son, reserving an annualrent of L. 20 yearly, furth of the said buith, to the said James Gilbert Gourly, creditor to James Nisbet, apprised, from James, the whole tenement, as it is bounded by its infeftments, The ground-right, and property thereof, with all other right competent to James; which right being now in the person of Mr William Nisbet, he pursues a poinding of the ground of the buith, against Robert Mein, who has the right of property thereof; who alleged, That the pursuer had no right to the foresaid annualrent out of the buith, because his author did not apprise the annualrent, but only the tenement, from which the buith was dismembered, by resignation, before the apprising, and so was neither part nor pertinent of the tenement belonging to James Nisbet, his debtor. It was answered, That the apprising being of the whole tenement, with all right competent to James Nisbet; and he having right to the annualrent out of the buith, the apprising carries the annualrent, though it be not expressed in the same manner as if James had disponed the tenement, with all right; for the right of property contains, eminenter, all lesser rights; neither is there here any competing, upon a more formal, or solemn right, of the annualrent; nor can the defender deny but he is liable in the annualrent, and hath 500 merks in his hand for the warrandice of it.
