Subject_1 ADJUDICATION and APPRISING. Subject_2 ADJUDICATION in IMPLEMENT.
Hamilton v. Chiesly
Date: 24 February 1675 Case No. No 3.
An adjudication in implement sustained, though led, not only for bygone, but for annualrent in time to come.
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Marion Hamilton being provided, by her contract of marriage with Mr Lewis Somervel, to be infeft in the annualrent of a sum of money; after his decease she charged his heir to fulfil the obligement, and infeft her in an annualrent in her husband's lands; and the apparent heir having renounced, she obtained adjudication of the lands, for implement of that obligement.—Mr William Chiefly having apprised the same lands, pursues her to remove; she excepts, upon her adjudication. He replies, That her adjudication is null; in so far as she has not only adjudged for the bygones of her annualrent, but for the same in time coming; which being before the terms, at which it will be due, is in so far null; but she ought to have liquidate the value of her liferent, and adjudged therefor.—It was duplied, That adjudication being an extraordinary remeed, where apprising was not competent, she hath followed the right method; for the heir was not obliged to buy her liferent, or pay a price therefor; and, therefore, she could not liquidate the value thereof against him, seeing it was a prestable deed; for he might have infeft her in the annualrent; and, therefore, as in the case of a disposition unfulfilled; when all diligence is done, the Lords do adjudge the lands disponed; the same ought to be done, for implement of an obligement to infeft in an annualrent; which, though it be general, without mentioning of particular lands, ought to affect the lands of the person obliged, or any part thereof; and therefore the same was orderly adjudged for the annualrent bygone, and in time coming.
The Lords sustained the adjudication.
In this cause it was alleged, That the said Marion Hamilton had consented to wadset-right, to which the pursuer had now right; and to a bond whereunto he had also right; which thereby must have preference to her right.—It was answered, That her consent to the bond was in recenti luctu, within two or three days after her husband's death, she being then bedfast; which the law allows as a sufficient reason to annul the deeds of women in that condition, 2do, If need be, it is offered to be proven, that her consent was elicit by fraud and circumvention; in so far as the writ was not read to her; but represented to her to be of another tenor, and to her advantage.
The Lords repelled the allegeance upon luctus, as not warranted by our law or custom; but ordained witnesses to be examined as to the circumvention. (See Fraud.)
