An heritable bond, when it becomes Personal, so as to be the foundation of Diligence.
Farquharson v. Stuart
Date: 14 January 1679 Case No. No 11.
Found in conformity with Finlayson against Johnston, No 4. p. 8115.
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Farquharson of Finzean having adjudged the lands of Balfedy from the apparent heir of Mr James Farquharson, who had apprised the same from umquhile David Farquharson of Balfedy, in anno 1637, and who, upon his apprising, attained possession; likeas there are produced his discharges to the tenants in anno 1641; but there being a liferenter infeft before the apprising, the debtor dying, she came to possess, and continued therein till 1673, and now the adjudger pursues for mails and duties. It was alleged for Robert Stuart, That he stands infeft in the lands by a disposition from the heir of umquhile David Farquharson of Balfedy, and alleged that the apprising led against him, whereunto the pursuer hath right by adjudication, was null; because, by the apprising, it is instructed, that it did proceed upon a bond, bearing annualrent before the year 1641, and so was heritable; and yet the apprising bears not that it was made moveable by a charge of horning, before the apprising, as was the inviolable custom at that time. It was answered, That apprising could not proceed without a liquid debt, and therefore where there was any infeftment for the debt, containing a clause of requisition or premonition, it was not liquid till these were used; or, where the debt, secured by infeftment, was payable on a single charge without requisition, till that charge was given; and though ex abundante, it was then ordinary to give such charges before apprising, yet it was not necessary, as it was found in a stronger case, wherein apprising was sustained without a charge, though proceeding upon a bond, bearing a clause of infeftment, where no infeftment followed, as is observed by Durie, July 10. 1629, Laird of Clackmannan, No 9. p. 69.; see No 6. p. 8116.
The Lords sustained the apprising, and found no nullity for want of a charge, seeing there was no infeftment.
