Subject_1 ADJUDICATION and APPRISING. Subject_2 REDEMPTION of APPRISINGS and ADJUDICATIONS.
Gordon v. Watson
Date: 18 July 1676 Case No. No 4.
Competion of orders of redemption.
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Watson having apprised the estate of Irving of Hiltoun, in anno 1662, John Moor, in anno 1672, apprises Federat's estate and Hiltoun's, for a sum wherein Federat was principal, and Hiltoun cautioner; and shortly after, within the legal, Moor uses an order of redemption of Watson's apprising, whereunto Gordon of Seatoun hath now right, and pursues declarator against Watson, for declaring, that the order was lawfully used within the legal; and that Watson, the appriser, after the order, entered in possession of Hiltoun's estate, and continued to possess till this time, whereby he is satisfied of the sums contained in his apprising by his intromission; and that there is no necessity to produce or deliver the sum consigned for redemption of the apprising. It was alleged for Watson the defender, That the order used by Moor could not be declared; because there were two orders of redemption used against Moor's comprising; one by Federat, and another by Gilbert Collison, who apprised Federat's estate, in anno 1671; which apprising Federat hath confirmed; and, for Collison's further security, hath infeft him in an annualrent out of the miln of Federat: Likewise Watson hath right from Collison, both as to the apprising and annualrent; and there is an order used upon Collison's right, for redeeming Moor's apprising, and a declarator thereupon intented; and, therefore, Gordon of Seatoun, as having right from Moor, hath now no interest to declare Watson's first apprising to be satisfied, seeing Moor's title is extinct by redemption, which Watson now craves to be declared.—It was answered for the pursuer, That he hath the first order, and the first declarator of redemption of Watson's apprising, wherein he hath now insisted; and Watson hath no interest, by his order, against Moor, to stop the declarator used by Moor, but the first action of declarator should be first discussed; and the Lords may justly refuse the declarator used upon Collison, or Federat's order, by way of defence, and reserve it by way of action, and in justice ought so to do; because, if the declarator of Moor's order be elided, by way of exception, by Collison's order, then Watson's first apprising becomes irredeemable; and he carries an estate of 30 chalders of victual for 3000 merks: The only remied whereof is the interruption of the expiring of Watson's apprising, by the order used by Moor; which if it be not declared, hath no effect; and, for this wicked design, Watson hath acquired Collison's right, that he may exclude Moor's declarator; but though Moor's order be declared, Collison's order may also be declared, whereby Watson, as having right from Collison, will come in Moor's place.
The Lords refused to sustain the declarator of Collison's order, by way of defence, to exclude the declarator of Moor's order; but declared Moor's order; and found Watson, the first appriser, countable, after the legal, upon Moor's order.
