Subject_1 ADJUDICATION and APPRISING. Subject_2 RANKING of ADJUDGERS and APPRISERS.
Margaret Scrimzeor v. the Earl of Northesk
Date: 7 July 1675 Case No. No 30.
An adjudication, for by gone feu-duties, was preferred to prior comprisings for personal debts.
Click here to view a pdf copy of this documet : PDF Copy
In a reduction, at the instance of Margaret, as heir to her father, who stood publicly infeft in the lands of Auchmouthie, against the Earl of Northesk, of his right and disposition, made to him by Patrick Guthrie, who was common debtor, whereupon no infeftment followed until the year 1655, which was four years after the public infeftment upon the pursuer's father's comprising, and so was a non habente potestatem, the disponer being denuded: It was answered, for Northesk, That the reason was noways relevant; because, albeit his father's infeftment was posterior, yet his disposition was prior to the comprising, and was granted for the feu-duties of the lands, which was a prior cause, and did affect the same before the pursuer's comprising; feu-duties being debita fundi, and a real right which affects the ground against all singular successors. It was replied, That the said disposition did only bear for an onerous cause and relief of cautionry, and not flowing from the superior, either by disposition or assignation, could not give the defender right to the same; the superior having granted a discharge of the feu-duties, the same was extinct, and could not affect the lands against a singular successor. It was duplied, That the disposition was affected with a back bond of the same date, bearing, that Northesk's being cautioner for the feu-duties, was the true cause thereof; neither could the feu-duties be said to be extinct, seeing the heritor was not discharged, who was principally liable. The Lords, having considered the first reason and reply, did sustain the reduction of the disposition, as being voluntary, and flowing from Auchmouthie, after he was denuded by comprising, there being no decreet obtained, nor the lands affected for the feu-duties; and the Earl of Panmure, as donator, having only granted a discharge, but no assignation to his right, would not defend against a compriser, who was really infeft, and ought to be preferred to Northesk, who had no right to the feu-duties thereafter. It being alleged, That the defender had an assignation from the Earl of Panmure, whereupon he might presently comprise; which being done, he would thereupon be preferred to the pursuer, upon that former allegeance, that it was debitum fundi, and did affect the lands before comprising: It was replied, for the pursuer, That they were not obliged, hoc loco, to debate that question; but should answer when the defender should get a legal title in his person to the feu-duties. The Lords, considering that the pursuer's comprising was expired, and would take away the right of the whole lands for an inconsiderable sum, did ordain, that they should debate presently of Northesk's comprising, or adjudging for the said feu-duties would be preferred to the comprising. Whereupon, it was alleged, for the pursuer, That the feu-duties being discharged by the last Earl of Panmure, the same were extinct; and this Earl, as heir, could not grant an assignation for that which was not in being. It was answered, That the discharge, being only granted to Northesk, as cautioner for the heritor, in a suspension, who made no payment; a discharge, by a cautioner, did not extinguish the debt; but he might take an assignation to pursue for relief: Likeas, the discharge bears an express obligement to renew the same in most ample form. The Lords did find, That a cautioner, getting only a discharge of the debt to himself, to save him from horning and caption, and not being relieved by the principal debtor, may take an assignation from the creditor; who may lawfully grant the same, to the effect he may distress the principal, and seek his relief; such a discharge and assignation being noways inconsistent.
