Subject_1 ADJUDICATION and APPRISING. Subject_2 LEGAL of APPRISINGS and ADJUDICATIONS.
Kincaid v. Gordon
Date: 26 June 1677 Case No. No 7.
An apprising, brought by the apparent heir, is redeemable within ten years by the creditor; and this legal was found prorogated, by a declarator, raised within the ten years, craving reckoning for apparent heir's intromissions, and offering payment of the surplus.
Click here to view a pdf copy of this documet : PDF Copy
Mr John Kincaid having right, by his contract of marriage, to a sum due by umquhile Gordon of Abergeldy, pursued his son as representing him, and insisted on that title, That he uplifted the rents of the lands of Abergeldy, wherein his father died infeft in see.—The defender having alleged, That his intromission was by right of an expired comprising, deduced against his father:—The pursuer alleged, That this apprising, coming now in the person of the apparent heir, by the act of Parliament 1661, betwixt Debtor and Creditor, is satissiable by payment of what the apparent heir truly paid out at any time within ten years after the apparent heir's right: And within the ten years the pursuer raised a declarator, craving therein count and reckoning for the defender's intromission, and offering payment of the surplus; which declarator is produced.—It was answered, That the said act doth only declare such apprisings redeemable within ten years, of what is resting after his intromission: But here there was no redemption, nor any order; and this being a new statute, it is strictissimi juris.—It was replied, That by the daily practice, the legals of apprisings are preserved from expiring, and prorogated by such declarators, in respect they cannot know what to consign till the appriser's intromission be determined by account.
The Lords sustained the declarator to prorogate this legal of ten years ad bunc essectum, to make the apparent heir liable to the pursuer for his intromission after satisfaction; and took in the declarator incidenter in this process, that thereby the pursuer might redeem from the defender, by payment of what was resting after intromissions.(See Heir Apparent.)
