Found in conformity to Grant against Grant, No 176. p. 11497.
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The King's Advocate pursues Forbes of Tolquhon for the avail of the marriage of John Lesly, in respect that Isobel Cochran died infeft in the lands of Tolquhon, and left John Lesly her apparent heir minor and unmarried, which avail being debitum fundi, it did affect the estate of Tolquhon, now belonging to Sir Alexander Forbes. The defender alleged, Absolvitor, because Isobel Cochran was denuded in her own time, in so far as her infeftment was upon an apprising deduced upon a bond due by Caskiben as principal, and Philorth and Tolquhon as cautioners, whereby all their estates were apprised; and there is produced a renunciation by the said Isobel of the apprising in favour of Philorth, and a back-bond by Philorth, bearing, that he stood in the right of the apprising of the estate of Caskiben by Dr Guild, and obliging himself to apply the benefit thereof, and of all subsequent rights he should acquire of the estate of Caskiben, for the use and behoof of Caskiben's eldest son, and for the weal and standing of the house; and therefore, Cochran's apprising acquired thereafter by Philorth being to the behoof of Caskiben's eldest son, who was in familia, and having no means or estate to acquire the same, law presumes that it was acquired by the father's means, which the Lords have ordinarily sustained, and declared estates so acquired subject to the father's debt, by apprising or adjudication, as if it stood in the father's person; so that if Cochran's apprising be declared to be in the same case as if it were in Caskiben's person, who was principal debtor of the sum apprised for, the apprising would be extinct; for it is without doubt, that apprisings are not like other infeftments requiring resignation and new infeftment; but whatever way they be satisfied, by intromission or payment, they are extinct ipso facto. It was answered, That whatever hath been extended in favour of creditors, yet this presumption was never sustained against the superior. It was replied, Multo magis against a donatar; for if the superior were craving a marriage by the death of Caskiben or Tolquhon, upon Isobel Cochran's apprising, the superior replying upon satisfaction by the means of the principal debtor, he would recover the marriage of the debtor's heir; and therefore cannot justly claim the marriage of both the debtor and the cautioners upon an apprising extinct by satisfaction.
The Lords found the defence relevant, that Philorth had right to the apprising, and declared it to the behoof of the principal debtor's eldest son, while in his family, which was presumed to be upon payment by his father.
