Subject_1 COMPENSATION - RETENTION. Subject_2 SECT. XIII.
Real and Personal Rights, Whether Mutually Compensable.
The Lord Saline and his Children v. Callender
1682.
March. Case No. No 95.
The Lords sustained compensation of the sums in an adjudication, by extrinsic intromissions and debts otherwise due, as well as by intromission with the rents of the lands, so as to extinguish the adjudication, these debts existing before expiring of the legal of the adjudication.
Click here to view a pdf copy of this documet : PDF Copy
William Stirling of Herbertshire, having led an adjudication against James Short, of certain teinds and acres in Stirling, for 3,000 merks; which being disponed to Oliver Murray and ——— Callender, his spouse, whereupon they were infeft; and after her husband's decease, she having pursued for mails and duties; and there being compearance made for the Lord Saline and his children, who had likewise an interest in the lands; and, it was alleged for them, That the sum whereupon the adjudication was led was satisfied and extinguished by compensation, in so far as William Stirling the defender was debtor to James Short, the Lord Saline and his children their author, in sums equivalent to the sums contained in the adjudication. Answered, That albeit intromission with the rents of the lands will extinguish the adjudication, yet extrinsic debts and personal obligements, wherein the adjudgers stood engaged to the defenders of their author, cannot extinguish the adjudication whereupon infeftment had followed, especially in prejudice of the pursuer, who is a singular successor: For, as compensation will not be sustained to extinguish an infeftment of annualrent or wadset, being heritable rights, except as to the bygone annualrents, as was decided Oliphant against Hamilton, No 90. p. 2633.; and Home of Plendergaist against Home of Lentill, No 92. p. 2633.; unless requisition had been made or the sums made otherwise moveable; so neither ought the same to be sustained to extinguish comprising or adjudication. Replied, That comprisings and adjudications are extinguished as well by extrinsic grounds of compensation as intromission. The debts and grounds of compensation being existing the time of the leading the adjudication or apprising; and it does not alter the case that infeftment followed upon the adjudication, or that the pursuer was a singular successor, seeing the grounds of compensation against Stirling his author were existing before he acquired a right to the comprising; it being a principle in law, compensatio ipso jure tollit obligationem; and the reason of law is, because an apprising or adjudication is but a legal diligence for the creditor's farther security before the legal be expired, and does not so alter the nature of the debt, but that it may be extinguished by extrinsic payments or compensation, as well as by intromission with rents of the lands, as was decided, the Laird of Leyes against Forbes of Blacktoun, No 91. p. 2633.; and there is great difference between an infeftment of annualrent or wadset, and an apprising or adjudication; for an infeftment of annualrent or wadset are in themselves principal rights and securities, and are not considered as sums of money but as heritage, unless requisition be made, or that the sum be otherways made moveable; whereas a comprising or adjudication being a legal diligence for the creditor's farther security, is considered in law as an accessory light, which does not hinder but that the sum contained in the adjudication may be extinguished by liquid debts existing before the legal be expired; as also the expiring of the legal of apprisings being odious, many things may be allowed to extinguish the sum contained in the adjudication and comprising that will not be allowed in other cases. The Lords sustained the reason of compensation by extrinsic intromissions to extinguish the adjudication, being before the expiring of the legal of the adjudication.
Fol. Dic. v. 1. p. 164. Sir P. Home, v. 1. No 241.*** Harcarse reports the same case:
Extrinsic grounds of compensation, existing during the legal of an apprising, though after the appriser was infeft, found to extinguish the apprising, even against singular successors after the compensation existed, just as intromission, or selling, or wadsetting a part of the apprised lands; though real rights, after infeftment, are not regularly compensable with personal rights, which are not ejusdem qualitatis. But this point was not fully considered.
