Subject_1 ADJUDICATION and APPRISING. Subject_2 LEGAL of APPRISINGS and ADJUDICATIONS.
Lady Torwood-head v. Gardners
Date: 10 February 1675 Case No. No 3.
Two different estates being apprised, for the same debt; an order of premonition and consignation, used by the proprietor of one of the subjects, was found to keep the legal open as to both.
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The Lady Torwood-head having obtained a decreet of the Secret Council of 600 merks yearly of aliment, to her and her children, out of her husband’s estate; and having gotten a gift of her husband’s liferent escheat for securing the said aliment and declaring the same, she now insists against the tenants of her husband’s lands for payment. Compearance is made for Florence Gardner, who upon a bond of 5000 merks granted by the Lord Forrester and Torwood-head, had apprised both their estates, and thereupon alleged, That he being thereupon infeft in the estate of Torwood-head, the Lady can have no access to the rents thereof; and the decreet of Council can only be understood as to the husband, but cannot exclude the infeftment upon an apprising, and whatever effect it could have had, during the legal, yet now after the legal is expired, Gardner hath the full right.—It was answered, 1mo That Gardner was compearing in the decreet of Council. 2do, That by the act of Parliament 1661, betwixt Debtor and Creditor, it is statute, “That the Lords of Session may restrict the possession of apprisings to such part of the apprised lands, as they see cause, providing that the same be sufficient for their annualrent, and that during the legal.” And albeit the years of the legal be expired, yet the same is interrupted by an order of premonition and consignation used by Edward Ruthven, son to the Lord Forrester, and assignee constitute by him to the legal reversion of his estate, apprised by several creditors, whereof Gardner was one.—It was replied, That any order used being only in relation to the Lord Forrester his estate, can have no effect as to Torwood-head’s estate.— It was duplied, That Florence Gardner having apprised both Forrester’s estate and Torwbod-head’s for the same sum; the consignation made by Forrester or his assignee, doth not only retain Forrester’s estate, but doth extinguish the debt, whereupon it was apprised, and consequently all apprisings following upon that debt, in the same way as if payment had been made.
Which The Lords found relevant, and by virtue of the act of Parliament 1661, restricted Gardner’s possession, so that 600 merks might remain free for the Lady’s aliment, providing that Gardner had enough behind for his annualrent.
