Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION.
Oliphant, &c v. Hamilton of Wishaw
1677.
Nov. and
Dec.
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Nov. 30.—Hamilton of Wishaw's case was debated, viz. He acquires a right to some apprisings on Antonia Brown of Fordell's estate. She has right to redeem by law, and our act of Parliament 1621, (because she was then minor,) any time till she be twenty-five years old; and the legal does not expire against them till then, being yet intra quadriennium utile. John Oliphant, being another creditor of hers, apprises the legal reversion from her of Wishaw's apprising; and John dies, and leaves a child behind him minor. Antonia Brown becomes not only major, but her twenty-fifth, and quadriennium utile, expires. Oliphant's heir, the co-creditor, and other appriser, who is minor, uses an order of redemption against Wishaw; and when he comes to seek a declarator upon his order of redemption, Wishaw's defence was, that his order could not be declared for redeeming him, because before that order was used his legal was expired by A. Brown's majority, and arriving at twenty-five. Answered,—Antonia was denuded of the reversion by Oliphant's comprising, and he stated in it; and, since his heir was minor, the legal could not expire against him neither, according to the sound principles of law in favours of minors.
The question was, if a co-creditor's minority stopped the statutory prescription of the ten years legal reversion in apprisings from expiring, as well as the minority of the debtor against whom it was led. did.
December 4th.—The Lords advised this case, which is altogether new, and not formerly decided, et omnes una voce, excepto D. Castlehill, found the minority of co-creditors, or other singular successors to the minor, (who had apprised the minor's right it may be,) stopped the legal from expiring; though the act of Parliament 1621 seems only to mean the debtor's universal successors as heirs. However, this may hinder an apprising from expiring for forty years together; and the decision surprised sundry. See the informations ad longum, in my folio law MS. C. See thir parties, 20th November, 1678, [volume fourth of this Work, p. 247.]
