Subject_1 ADJUDICATION and APPRISING. Subject_2 EXTINCTION of APPRISINGS and ADJUDICATIONS.
Schaw v. Muir
Date: 14 January 1681 Case No. No 13.
An appriser, taking a decree of mails and duties, against the whole tenants of an estate lying contiguous; found liable to account for the whole rents, whether he actually levied them or not, unless he could shew he had been prevented.
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Schaw of Grimmat having apprised the lands of Sheill, pursues John Muir, a prior appriser, for declaring his apprising extinct and satisfied, in so far as he had, upon his apprising, taken a decreet of mails and duties, against all the tenants for certain years, and in all time coming; and by virtue thereof had uplifted the mails and duties.—The defender alleged, That he was only accountable for his actual intromission, at least for the rental of such parts of the lands, as he once entered in possession of by uplifting of the duties; for it is a known principle, that apprisers are not obliged to intromit, and are only liable to account for the rent of those rooms that once they begin to possess.—It was answered, That this ground is not controverted, where apprisers attain no possession; but, where they take decreets for mails and duties for all time coming, they thereby attain a civil possession, and no other apprisers being posterior, have, any remeid, but are as effectually debarred by the decreet, as if they had been in possession, and had eompeted and been excluded; for no law nor reason, can oblige any person to pursue the tenants, where he knows he cannot prevail; and whatever might be pretended as to distinct tenements, and distinct lands, that one appriser taking decreet against the whole tenants, and lifting the rents only of some baronies and tenements, and abstaining from the rents of other whole tenements distinct and distant, where posterior apprisers might have pursued the tenants of these distinct tenements, and thereby forced the first appriser, either to possess that he might be satisfied; or to suffer them to possess; yet here there is but one small tenement contiguous, and if the first appriser, possessing the most part, omitting any of the tenants, the pursuers were not obliged to enquire therein, but might warrantably presume that he hath lifted from all, by his decreet, and that he was not impeded; and if, by fraud or collusion, he hath neglected some of the tenants, or suffered the common debtor to lift the rents, sibi imputet, he must account for them as if he had lifted them.
Which the Lords found relevant, and found the defender liable to account for all the tenants contained in his decreet, unless he instruct how he was excluded; but as for the common debtor's possession by his own labourage, which the posterior apprisers might visibly know, there was nothing alleged to be in the decreet concerning the common debtor, and so nothing was determined as to that point, but that the defender was to be accountable for all the tenants contained in his decreet, lying contiguous in one tenement, whereof the possession of the greatest past was acknowledged.
