An apprising of a predecessor's estate was found not redeemable from the apparent heir, who had acquired it while he was only a second brother, and not apparent heir.
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John M'Lurg smith, pursues John Gordon, as behaving as heir to his father, for payment of 400 merks, and insists against him, as behaving by intromission with the rents of his lands. The defender alleged absolvitor, because his intromission was by virtue of an apprising led against his father, whereunto he had right. It was answered, that by the act of Parliament betwixt debtor and creditor, apprisings acquired by apparent heirs are redeemable by creditors for the sums they truly paid. It was answered, non relevat, because the defender acquired the apprising when he was not apparent heir, having then an elder brother living. It was replied, That the elder brother was out of the country, and that the appriser did dispone the apprising for small sums to the second brother, upon account of his blood and relation; and there is like reason to prevent fraud in this case, as if the defender had been immediate apparent heir.
The Lords found that the act of Parliament could not be extended to this case.
Fol. Dic. v. 1. p. 360. Stair. v. 2. p. 324.*** Gosford reports the same case:
In a pursuit at —— instance against——representing his brother, for payment of his debts, upon that passive title that he had intromitted with rents of lands wherein his brother died infeft, as apparent heir; it was alleged for the defender, That he could not be liable upon that passive title, because he had acquired a right to a comprising of his brother's estate, in his brother's lifetime, and so could not be apparent heir, which is only sustained against those which are in linea decendente, but not of collateral line. This allegeance being sustained, it was then craved that the pursuer, being a lawful creditor, might have the benefit of the act of Parliament anent debtor and creditor, that he might redeem from the defender for that sum he paid for the right of the comprising, seeing by the death of the brother without heirs, he is now apparent heir. The Lords having considered the act of Parliament, did find that the defender's right did not fall within the same, nor could be redeemed by a creditor, because he was not, nor could be, interpreted an apparent heir, having acquired that right during his brother's lifetime, who might have had other heirs of his own body, and the act of Parliament can only be interpreted of such apparent heirs who necessarily may succeed.
