Litigious by denunciation upon apprising, and citation upon adjudication.
Subject_3 SECT. III.
Mora.
Neilson v. Ross
Date: 8 February 1681 Case No. No 83.
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Denunciation of apprising renders the subject litigious, after which every voluntary alienation by the debtor, even for a price told down, to prevent the appriser in cursu diligentiæ is ineffectual; but where the appriser was silent and negligent by the space of ten years, without infeftment or charge, and without pursuing for mails and duties, he was not allowed to plead the litigiosity, since it could not be said that he was in cursu diligentiæ.
Fol. Dic. v. 1. p. 558.
*** This case as reported by Stair is No 134. p. 1045., voce Bankrupt.
*** Fountainhall likewise reports it.
The Lords preferred a singular successor, who bona fide bought lands, to a comprising, whose legal was expired before the said disposition, because the appriser was in mora, and had never done any diligence to infeft himself, or to charge and denounce the superior; whereas the receiver of the disposition was publickly infeft, though after the expiring of the legal. This would also hold in one who apprises after the other's legal (who was not infeft,) and the said last appriser infefts himself.
Then they quarrelled the said disposition, as being granted by a bankrupt, after he was denuded by their prior diligences on the act 1621. The words of the interlocutor are: “The Lords, on Newton's report, find that the appriser not having insisted in diligence, nor being in cursu diligentiæ, has thereupon no ground to reduce a posterior voluntary right granted for onerous causes. And find that the voluntary right, not being a gratification to the buyer, but in satisfaction of an anterior debt due to the buyer, it is not reducible upon the act 1621, notwithstanding a posterior comprising was led by another party, and infeftment following thereupon, in respect the first apprising was led diverse years before the second apprising, and no diligence done thereupon.”
Stair tells us, no voluntary deed can be done after the denunciation of an apprising; intellige unless the appriser be in mora.
