Apprisings and Adjudications with Voluntary Rights.
Justice v. Aikenhead
1682.
December. Case No. No 65.
In a competition betwixt an apprising and a voluntary disposition, the Lords, in respect that the disposition was prior to the denunciation of the apprising, preferred the voluntary right competition by confirmation of the superior, although posterior to the charge upon the comprising, in regard the charge was only to be considered in the competition of diligences among themselves, but not with voluntary rights.
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Ludovick Keir having granted a wadset of the lands of Easter Crichton to Dr Scot, for the sum of 12,000 merks, and Dr Scot having disponed the wadset to Hepburn of Seaton, he thereafter dispones the same to John Justice, late Bailie of Edinburgh; and there being an apprising led at the instance of Janet Aikenhead, relict of Adam Nisbet writer in Edinburgh, against Dr Scot, of the foresaid wadset, and certain tenements of land in Edinburgh belonging to him; and John Justice having likewise apprised Dr Scot's right, pursues a declarator against the said Janet Aikenhead, for declaring her apprising to be satisfied by her intromissions with the rents of certain tenements of lands in Edinburgh, and that she ought to compt and reckon for that effect.—Alleged for the defender, That she could not be comptable for the rents of the tenements of land in Edinburgh, unless Bailie Justice compt to her for the rents of the lands of Easter Crichton, whereof he was in possession.—And it being answered, That Bailie Justice was not in possession by virtue of the apprising against Dr Scot, but by virtue of the disposition from him to the wadset, which was prior to the defender's apprising, and the infeftment was prior to the infeftment upon the apprising;——The Lords, upon that ground, having preferred the voluntary right and disposition, it was thereafter alleged for Aikenhead, That albeit the disposition was prior to the infeftment upon her apprising, yet seeing there was a charge given to the superior upon her apprising, prior to the infeftment upon the disposition made by Dr Scot, and a charge against the superior, being in law equivalent to an infeftment, she ought to be preferred; and albeit the pursuer were preferred by virtue of his right of wadset, yet seeing it was an improper wadset, affected with a back-tack, and he being in the natural possession, was only preferable as to the back-tack duties, but must be comptable for the surplus.—Answered, That albeit in a competition betwixt two apprisers, and a charge against the superior, prior to the infeftment upon another apprising, the comprising with the first charge will be preferred; the infeftment granted by the superior to a second appriser is only looked upon in law to be but a voluntary gratification, which prejudges the other appriser's diligence, by virtue of the charge; and the reason is, because seeing apprisers may charge a superior, it is just that he that gives the first charge should be preferred; but that does not hold in the case of a competition betwixt an appriser who has charged the superior, and a party having right by a voluntary disposition, upon which infeftment has followed; who, albeit the infeftment be posterior to the charge, yet it is always perferable; because in that case the first infeftment is considered, and not the charge; and the reason is, because a party having right by voluntary disposition, cannot use diligence against the superior to force him to infeft him; whereas the compriser may go on in diligence, and force the superior to grant infeftment; and the superior was not liable to compt for the superplus, more than the back-tack duties of the wadset disponed to him by Dr Scot; because he had right to the reversion, by an apprising led against Ludovick Keir, granter of the wadset.—The Lords preferred Bailie Justice, in respect his disposition was prior to the denunciation of the apprising, albeit his infeftment was after the charge given to the superior upon the apprising; and found, that the charge was only to be considered in case of a competition of diligence among the comprisers themselves; but not in the case of the competition of voluntary rights.
Fol. Dic. v. 1. p. 182. Sir P. Home, MS. v. 1. No 297. p. 439.*** President Falconer reports the same case:
In the competition betwixt Janet Aikenhead, relict of Adam Nisbet, pretending right to the lands of Easter Crichton, by virtue of a comprising led against the common debtor, which was within year and day to a comprising, in Bailie Justice his person, whereupon the superior was charged; and Bailie Justice pretending right to the said lands, by virtue of a disposition granted by the common debtor, before denouncing of the lands to be apprised, and confirmed by the superior, after a charge upon the comprising against the same superior;—it was alleged by the compriser, That the charge against the superior was equivalent to an infeftment, and consequently, being prior to the confirmation, was preferable.—It being answered, That a charge against a superior upon a comprising, albeit it was equivalent to an infeftment in the competition of diligence betwixt comprisers or adjudgers amongst themselves, and did so bind up the superior, that he could do no deed to prefer one to another; yet it was not equivalent to an infeftment in the Competition with a voluntary right, such as this is, especially the disposition, which is the ground of the voluntary right, being before the denunciation of the apprising; and the nature of voluntary rights being such as cannot be completed by diligence without a superior's consent, the superior at any time may confirm them, even after a charge upon a comprising, and that, if it were otherwise, it would tend to unhinge a purchaser's securities, there being no record of charges upon comprisings against superiors.—The Lords, in respect that the disposition was prior to the denunciation of the apprising, preferred the voluntary right completed by confirmation of the superior, albeit posterior to the charge upon the comprising, in regard they found, That the charge was only to be considered in the competition of diligences among themselves, but not with voluntary rights.
Fol. Dic. v. 1. p. 182. Pres. Falconer, No 58. p. 38.
