Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JAMES DALRYMPLE OF STAIR.

The Bishop of Aberdene
v.
The Viscount of Kenmure

Date: 27 January 1681

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The Bishop of Aberdene, having right to an infeftment of annualrent, in security of 10,000 merks, out of the barony of Corsmichael, pursues a poinding of the ground.

Compearance is made for the Viscount of Kenmure, who alleged Absolvitor; because, before this infeftment of annualrent, the lands in question were apprised by one M'Bryer, whereunto the Viscount of Kenmure stands now infeft by progress from M'Bryer.

It was answered, That M'Bryer's apprising being disponed to the Laird of Lawers, he ratified this annualrent; and the Viscount, having right by progress from Lawers, cannot quarrel the same.

It was replied, That this ratification is not relevant against a singular successor; for, though Lawers had disponed his apprising in corroboration of this annualrent, it would have had no effect against singular successors, unless Lawers's consent had been a ground of their infeftment; otherwise all singular successors would be insecure, and the excellent statutes for securing purchasers would be elided: for a person, having an irredeemable disposition, may give ratifications, assignations, and back-bonds restricting, which would be effectual, if drawn in question before he were infeft, even against his singular successors by assignation; but, if the matter were not made litigious before infeftment, after infeftment such personal rights from the authors would have no effect against singular successors. And albeit apprisings may be so restricted and affected during the legal, when they are but legal diligences for security, and if they become litigious before expiring of the legal, they will be effectual against singular successors, acquiring right even after expiring of the legal; otherwise the effect of all these personal deeds ceases so soon as the apprisings become irredeemable rights; or else a great part of the securities of the kingdom being founded upon infeftments, acquired from apprisers after the legal was expired, they might all be rendered uncertain.

It was duplied, That this ratification was within the legal; and, being once effectual against singular successors, cannot, ex post facto, cease to be effectual by expiring of the legal. And seeing payment, by intromission or otherwise, within the legal, will still be effectual against singular successors purchasing after expiring of the legal, so must renunciations or restrictions be, which require no registration; and this ratification is in effect a restriction, that the apprising shall not reach the lands in prejudice of the annualrent. 3tio. This annualrent is homologated by this Viscount of Kenmurc, who paid the sum to the Bishop's author, Whitekirk; and M'Bryer's apprising returning in the person of Kenmure, the apparent heir, whose right is within ten years, and so under a legal reversion, by the late Act of Parliament 1661, the ratification is upon the defender's own grounds.

The Lords sustained the ratification and annualrent, ratified by the homologation, being now drawn in question during this new legal: but did not determine the first point, whether the ratification, being within the first legal, would be effectual anent singular successors, after expiring of that legal; for though payment or intromission do continue ever to be effectual, that is by statute. But whether restrictions, voluntary renunciations, or reversions, unregistrate, would be effectual against singular successors purchasing after expiring of the legal, that being a general concernment; the Lords forbore to determine therein, this cause being determined upon the foresaid specialty.

Vol. II, Page 845.