Subject_1 ADJUDICATION and APPRISING. Subject_2 RANKING of ADJUDGERS and APPRISERS.
Straiton v. Bell
Date: 7 November 1679 Case No. No 26.
Infeftment upon the first apprising, is communicated to all within year and day. - Inde, a second not infeft, but within year and day, is preferable to a posterior, not within year and day, though infeft.
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John Straiton having adjudged certain tenements in Edinburgh, from the apparent heir of James Bell, pursues the tenants for mails and duties. Compearance is made for Gilbert Bell, who had comprised the same tenements from the same apparent heir, and thereupon was infeft, and in possession; and thereupon alleges preference, because albeit Straiton's apprising be prior to his, yet Straiton was never infeft.—It was answered for Straiton, That Carnegie was the first appriser, and infeft; and that Straiton had adjudged within year and day after Carnegie's apprising, and so needed no infeftment to complete his right: But by the act of Parliament 1661, between Debtor and Creditor, it is declared, That all apprisings or adjudications within year and day of the first effectual apprising, shall come in pari passu, as if one apprising had been led for them all.—It was replied, That this clause being correctory of the ancient law, whereby the first appriser being infeft, excluded all the rest from mails and duties, until they redeemed the first, it doth only bring in posterior apprisers, as to mails and duties, but cannot make the rights real without infeftment; nulla sasina, nulla terra; so that though they might defend thereupon against the first appriser, claiming the whole duty, yet they cannot against a third party; and here the first appriser is not competing, nor cannot, because his apprising is extinct by intromission, and consequently his infeftment; and therefore it cannot stand as an infeftment, neither to the first appriser, nor to any other.—It was answered for Straiton, That he oppones the clause of the act of Parliament, bringing in all the apprisers within year and day, as if one apprising had been led for all: In which case the infeftment would have been an infeftment upon all the apprisings; and therefore, though the first apprising were extinct, the rest stood valid, or otherways that clause would be elusory, and no posterior appriser could rest upon it, seeing he could not know how or when the first appriser might be satisfied; and as law makes a charge as effectual as an infeftment, so the act of Parliament might declare apprising within a year to be effectual without infeftment; which it hath done in another way, by declaring all these apprisings to be, as if one apprising had been led for all.
The Lords found, That Straiton's adjudication being within year and day of the first effectual apprising, the infeftment was equivalent, as if it had proceeded upon Straiton's adjudication; though the first apprising was satisfied by intromission, yet the infeftment was not extinct simpliciter, but as to the first appriser; therefore preferred Straiton, (though not infeft,) to Bell's posterior apprising, though infeft.
