Subject_1 ADJUDICATION and APPRISING. Subject_2 LEGAL of APPRISINGS and ADJUDICATIONS.
Laird of Leys v. Forbes
Date: 18 June 1675 Case No. No 6.
If the appriser continue to possess after expiry of the legal; the debt is thereby extinguished, and the apprising turned into an absolute right of property. This was found, though the apprising proved ineffectual as to great part of the lands, the remainder being equivalent to the debt apprised for.
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The Lord Forbes having granted two several Wadsets to Alexander Burnet elder and younger; after the death of Alexander Burnet elder, Leys apprises the right of both wadsets, and some other lands from Alexander Burnet younger, and was thereupon infeft. The laird of Pluscardin having acquired the right of reversion from the Lord Forbes, premonishes Alexander Burnet younger, after his father's death, and obtains decreet of declarator of redemption; but because then there was a liferenter, and several arresters, the Lords ordained the consigned sums to be put in the hands of Forbes of Corsindae, who had bought the redeemed lands from Pluscardin, and ordained him to give bond to make payment of the sums to the Laird of Leys at Martinmas 1643, to be made forthcoming to all parties having interest; Leys, before payment, always obtaining a renunciation of the wadsets to Corsindae; and accordingly, Corsindae gives bond, whereupon Leys charges for payment; Corsindea suspends upon double poinding, as being distrest both by Leys and Forbes of Blacktown, who had obtained a right from the heir of Alexander Burnet elder, and also upon the condition in his obligation of obtaining a renunciation.—It was alleged for Burnet of Leys, that he ought to be preferred, because the sums having been ordained to be paid by Corsindae to him, to be made forthcoming to all parties having best right; he hath best right himself, in so far as old Burnet, to whom their wadsets belonged, was debtor to Leys in a greater sum, and thereupon he had right of compensation, or retention against Alexander Burnet's heir, or Blacktoun her assignee, seeing compensation is relevant against the assignee, upon debts due by the cedent before intimation; and neither could the heir, or Blacktoun her assignee, pretend any right to the consigned sum, because it is moveable, and belongs to the wadsetter's executors, and not to his heirs. For, when sums are assigned by debtors for purging wadsets of their lands, the debtor remains proprietor of the money, and may uplift the same, and pass from the order at any time before the same be accepted by the creditor, or before decreet of declarator, whereby the property of the consigned sum is transmitted to the creditor; and if the creditor die, the consigned sum, if it be not lifted by the debtor, belongs to the creditor's executors after declarator, for the body of money is unquestionably moveable; and there can be no pretence upon the heritable right of wadset, because, by the declarator it is extinct; so that this consigned sum cannot belong to the heir of old Burnet, but to his executors; and albeit there cannot be a formal compensation by Leys, not having the sum in his hands, yet the same being payable to him, it is equivalent as if it were in his hand, and therefore he must have retention or preference to the one, who hath no right, nor her assignee. For clearing of this, the Lords remembered of a decision the 21st of January 1673.* Nicol against Lowrie, where it was found, That before declarator, the debtor who had consigned, or his heir, had right to the sums consigned, and might pass from the order.—It was answered for Blacktoun, That albeit consignation only, doth not transmit the property of the consigned sum, yet decreet of declarator stateth the only right in the creditor wadsetter, and denudeth the
* Stair, v. 2. p. 152. See Right in Security.
debtor consigner; and in this case there is a decreet of declarator, so that the sums cannot belong to Burnet the creditor's heir, or to Blacktoun her assignee.—It was replied, That where declarator is obtained against a party, having right to the wadset, and being infeft, the sums will belong to the creditor; and if he uplift them not, to his executors; and his heir will be obliged to renounce though he get not the sums, because the creditor's mind is there evident, that he doth not lift and re-employ the sums to his heir, but leaves them moveable; but moveable sums will sometimes belong to the heir, as if executors be secluded, which is frequent; and in this case, the sums cannot belong to an executor, because the order was used, and declarator obtained long after the death of Burnet elder, so that at the time of his death the wadset continued a real right; neither can it belong to the executors of Burnet younger, against whom the order and declarator was used, because he died uninfeft in the wadset, and so had never right himself, which therefore cannot descend to his executors; so that the singularity of this case must only state the right of the sums in the person of the heir of Burnet elder, who died infeft in the wadset.
The Lords found, That in regard of the specialty, the consigned sums belonged not to any executor, but to the heir of Burnet elder, and Blacktoun her assignee.
It was further alleged for Leys, That albeit the sum should be found due to the heir of Burnet elder; yet, 1mo, If the heir were competing the would unquestionably be excluded by Leys as a creditor to Burnet elder, whereby she being heir to him, did immediately become Leys' debtor, and could not crave up this sum, which was appointed to be paid to him, but would be excluded by compensation or retention; seeing the sums being payable to Leys himself, he could not arrest his own sums; and therefore all persons intrusted, have, by the trust, the same interest as they could by legal diligence, because they could not use the same against themselves.—It was answered for Blacktoun, 1mo, That there was no compensation in the case, because this sum was never in Leys' hands, but by the decreet of declarator, was immediately put in the hands of Corsindae, payable to Leys. 2do, Though there could be compensation, yet not upon Leys' sums alleged upon, because he apprised this wadset, and several other lands for these sums; and so, being heritable by a real right and infeftment, he cannot compense a moveable liquid debt. 3tio, Leys' infeftment is expired, and he and his assignees are in possession of the apprised lands, whereby the sums are extinct, and he cannot compense therewith; and albeit this wadset, which was a part of the apprised lands, is not reached by the apprising, in respect it was led against Burnet younger, who is neither infeft nor charged to enter heir, yet it is offered to be proven, that the rest of the lands yet bruiked, do exceed in worth the sums apprised for.—It was answered for Leys, That albeit heritable sums by wadset, which require a course of time after requisition, cannot be compensed before the time of requisition be run, yet sums apprised upon requiring no such order, may be summarly made use of by arrestment or compensation; and albeit Leys' apprising be expired, and possession thereby, which would have extinguished the debt, if the apprisings had been fully effectual, yet here it is but effectual in part; and therefore such proportion of the sum apprised for, may be made use of by compensation or arrestment, as effeirs to the proportion of the lands apprised, as to which the apprising proves not effectual.
The Lords found compensation competent upon sums, though apprisings were led thereupon; but found, That the apprising being expired and possessed thereby, did satisfy the sums whereupon it proceeded, albeit it proved not effectual as to the whole lands, if it proved effectual as to as much as was equivalent to the whole sums apprised for.
And this occurred to the Lords, that Blacktoun the assignee, in so far as his right proceeded upon an onerous cause, was in better condition than the heir, and preferred him pro tanto; but in so far as his right was gratuitous, found that he was in no better case than the heir, and that Leys the creditor was preferable to him, if he did not bruik lands equivalent to his sums, and ordained Blacktoun to depone upon what sums he truly paid to the heir.
