Subject_1 ADJUDICATION and APPRISING. Subject_2 ADJUDICATION Upon The ACT 1672. Subject_3 *** The import of the act is as follows: - Considering how much comprisings have departed from the original design of the legislature, which never meant that great estates should be carried away for inconsiderable debts; nor that messengers, or ignorant persons, should judge in matters of so great importance: And, considering the great prejudice to trade and commerce, proceeding from the length of the legal reversion, during which, the creditor cannot command his money, and both debtor and creditor neglect the improvement of the lands; and, that even after the legal is expired, comprisings become the foundation of much fraud; the right thereof being sometimes acquired by the apparent heir of the debtor, who thereby secluded lawful creditors: And as, by the ignorance of notaries and messengers, and in consequence of many unnecessary solemnities, nullities have often happened in the diligences, and at all times they have been most expensive, by means of penalties and sheriff fees: In order to secure equally the interests of debtors and creditors, it is enacted, That in place of apprisings, the Lords of Session shall, at the instance of any creditor against his debtor, principal or cautioner, adjudge and decern to the creditor, in satisfaction of his debt, as constituted, such a portion of the debtor's estate, consisting in lands and other rights, which were in use to be apprised, as shall be worth the sum, principal and interest, then due, and a fifth part more, in compensation of the want of the use of the money, and the necessity of taking land in lieu of it; and these over and above the composition to the superior, and the expences of the infeftment. The adjudication shall be made according to the rates of the lands and other rights in the neighbourhood, and proof shall be taken by the Lords, on the part of the creditor, and likewise of the debtor, (if he shall desire it,) of the yearly rent and value of the lands and rights, and what they have yielded for five years preceding, and what they may pay, and the rates and prices at which such lands and rights are usually sold in the neighbourhood; with power to the Lords to determine what warrandice the debtor shall be liable in to the creditor, of the lands and rights so adjudged. Upon the decreet of adjudication, it shall be lawful for the creditor, immediately to enter to the possession of the lands or other rights, and so intromit with the mails and duties thereof, in satisfaction of his annualrent, during the not redemption; and he shall not be liable to any restriction, or action of count and reckoning. If the lands adjudged be affected with liferents, or any casualty, or if the right adjudged be such as to yield no rent during the legal to be now appointed, this shall be expressed in the decrees, together with that part of the sum effeiring thereto; that in case of redemption, the creditor may have his annualrent for that part of his sum, for which he had no profit; which lands, and other rights adjudged, shall belong heritably and irredeemably to the creditor, if they be not redeemed within the space of five years, after the decreet of adjudication, by payment or consignation of the sums, principal and interest, for which the adjudication proceeded, the composition paid to the superior, and expences, in obtaining infeftment, and interest thereof, in so far as not satisfied by possession, in manner mentioned. The creditor being once in peaceable possession, conform to the decreet of adjudication, it shall not be lawful for him to use any farther execution against his debtor, except in case of eviction upon the warrandice, which the Court shall order. But it shall be lawful for the creditor to use all manner of diligence against his debtor, principal or cautioner, by horning, caption, arrestment, or otherwise, until he enter to the actual possession. Comprisings are prohibited in future, without prejudice of any comprisings led before the date of the act, or to be deduced, of lands or other rights already apprised, of which the legal is not expired, which are to be regulated by the former laws. It is provided and declared, that if the debtor shall abstract the writs and evidents of the lands, and other rights to be adjudged, and shall not produce sufficient rights and deliver them, or transumpts of them, to the creditor, such as the Lords shall judge necessary; and, if he shall not renounce the possession, and ratify the decreet of adjudication, in order that the creditor may enter summarily and without impediment, so that he may have a clear right and quiet possession; then, and in that case, it shall be lawful for the creditor to adjudge all, or any right belonging to his debtor, in the same manner as he might have apprised them, according to the act of Parliament 1661, under the reversion, and with the power competent to other creditors, expressed in the said act. It is provided, that neither the superior, nor the adjudger, shall be prejudged by the new act; but that they shall be in the same case after citation in an adjudication, as if apprising were led of the lands at that time, and a charge given to the superior thereupon. Decreets of adjudication shall be allowed by the Lords of Session, as apprisings used to be; and the allowance shall be registered in the same manner, and under the same certification, with the allowance of comprisings, that it may be known; and that creditors may not be disappointed, by adjudging lands already adjudged to others.
Cha. II. Sect. 19. 6th Sep. 1672. p. 501. duodecimo.
Wilson v. Home
1684.
February16*. Case No. No 7.
Apprisers and adjudgers may be restricted in their possession. Special adjudications only, can contain a fifth part more. General adjudications, with that clause, will be restricted to principal, annualrent, and penalty.
The act of sederunt, relative to decrees of adjudication, dated 26th February 1684.
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William Wilson, merchant in Edinburgh, having adjudged the estate of Rentoun from Sir Alexander Home, and being infeft, pursues a removing from the house and mains of Rentoun.—Alleged for the defender, that the adjudication was null, being led for a greater sum than was due, in so far as it was not only deduced for the principal, annualrent, and penalties, contained in the bonds; but for a fifth part more, whereas the hail estate being adjudged, the defender not having compeared and produced the rights, that the pursuer might have been restricted to a part of the lands, the adjudication did pass as an apprising; which could only have been for the principal, annualrent, and penalty, and not for a fifth part more; which was only provided, in the case, if the creditor was restricted to a part of the lands, as appears by the act of parliament concerning adjudications. And albeit, the adjudication could be sustained for the just sums, yet the defender cannot be removed from the house and mains; because it is
* The date in the MS. is by mistake, December. 1683.
provided by a clause in the act of parliament for ordering the payment of debts betwixt debtor and creditor; that where the lands and others comprised, exceed the yearly rent in value, the annualrent of the sums contained in the apprising, and the expences debursed in expeding infeftments thereupon, and the debtor shall desire the creditor to possess the lands and others comprised; the Lords of Session are empowered to appoint the apprisers to possess such of the lands and others during the legal reversion, as the Lords of Session shall think meet and reasonable, not being beneath, of yearly rent and value, of the annualrent of the sums. And seeing the mains of Rentoun is allocate to Sir Alexander, for an annuity granted to him by his father out of the estate, the rest of the estate being to be employed for payment of creditors, conform to a tack set to Sir Patrick Home his brother; and Sir Alexander is content that the pursuer have a locality out of any other part of the estate he pleases, for payment of his annualrents, as was decided the 27th June 1662, Wilson against Murray, (See Apprisers and Adjudgers may be Restricted in their Possession); where, in an action of removing, and mails and duties, pursued at the instance of an appriser, the Lords, upon that clause of the act of parliament, betwixt debtor and creditor, found that the pursuer, during the running of the legal of apprisings, could only have right to so much of the apprised lands as he should chuse, worth 8 per cent., and to count for the surplus, more than his annualrents and public burdens, excepting the defender's house and mains; and the 10th February 1675, Lady Torwoodhead against Gardner, (See next Subdivision); where the Lords found an apprising both against the principal and cautioner's estate not to be expired, in respect of an order used by the principal, though not declared; and therefore, the appriser's possession was restricted to his annualrent during the legal, by the act, Debtor and Creditor. And the foresaid clause in the act of Parliament, ought to have the effect of one general law, as well as that clause prorogating the legal of apprisings, and bringing in apprisings led within year and day pari passu together.—Answered, That the summons, whereupon the adjudication proceeded, being libelled in the terms of the act of Parliament concerning adjudications, craving the lands to be adjudged for payment of the principal sum, annualrents, and a fifth part more; and the defender not having compeared and desired the benefit of the act of Parliament, and produced the writs, that there might be only a part of the lands adjudged for payment of the sum, with a fifth part more; the adjudication behoved to proceed in the terms it was libelled; and it being declared by the act of Parliament, that where the debtor does not compear, then it shall be leisome to the creditor, to adjudge all or any right belonging to his debtor, in the same manner as he might have apprised; and seeing the pursuer might have comprised for the principal, annualrents, and sheriff fee; the fifth part more, in that case, comes in place of the sheriff fee; and, the most that can be desired is only, that the fifth part more be restricted to the sheriff fee, as in the case of an apprising. And albeit, the fifth part, be somewhat more than the sheriff fee, and utile per inutile non vitiatur; that can be no ground to annul the adjudication; and the foresaid clause in the act of Parliament, Debtor and Creditor, cannot have the effect of a general law; but can only be understood, as to such debtors, as have taken the benefit of the act of Parliament; or of such comprisings, as have been led since the year 1652; or whereof the legal was not expired before the year 1652, mentioned in the clause immediately preceding, as is clear from the whole tenor of the act; in so far as the former part of the act bears, That all personal execution shall be forborne for principal sums, for the space of six years, providing the debtor compear and take the benefit of the act, betwixt and a certain day; and, for the more case of those debtors, that shall take the benefit of that act, it is provided, that if they offer the creditor a part of his debt, not within the third of the sum, the creditor shall be holden to accept thereof; and the legal of reversions of comprisings, which was formerly limited to seven years, is prorogate to ten years; and all comprisings deduced since January 1652, whereof the legal is expired; or deduced before that time, and the legal not expired before January 1652, shall be redeemable within three years. And thereafter it is subjoined, that in case the lands and others comprised, exceed in yearly rent and value, the annualrent of the sums contained in the apprising, and the debtor shall desire the creditor to possess the lands comprised; it shall be lawful for the Lords of Session, upon a supplication made to them by the debtor, and a citation of the compriser, to appoint the creditor to possess such of the lands, bearing the legal reversion, as the Lords shall think fit; which clause can only be understood in relation to the preceding part of the act, which is only, as to such creditors, as had taken the benefit of the act, Debtor and Creditor; or comprisings deduced since, or whereof the legal was not expired before January 1652; to which the foresaid clause is immediately subjoined; and if that clause were otherwise understood, it would overturn the foundation of all legal securities by adjudication or apprising, which is the great security of the lieges, and is introduced in favours of creditors, that they may affect their debtor's estate, and possess the same in whole, or in part, as they please, ay and while they be paid. And they would be in a worse case, than if they had not apprised; because it would be in the power of the debtor to force the creditor to possess lands lying at a distance; and, where the tenants are desperate and irresponsal, and might be forced to accept of a partial possession, and to enter to the possession of victual, in place of money, which is aliud pro alio solvere; and debtors might free themselves of personal execution, by forcing their creditors to possess, so that after this, no man should ever comprise for his debt; for, that which the law has introduced in favours of creditors, for their further security, would prove a snare to them, which is downright contrary to the analogy of our law; and so cannot be extended beyond the general cause, to which the clause relates; especially this being a correctory law, is not to be extended beyond the subject matter, which gives the rise to the law; which was the case of such debtors, for a certain time, who had taken the benefit of the act of Parliament, and whose estates were comprised since the 1652, and the legals expired; or comprised before 1652, and not expired before that time; whereof the legal is prorogate for three years after the act; and albeit, this clause seems to be conceived in general terms, yet it can only be understood in relation to the former part of the act, and clause immediately preceding. There are many clauses in that act, which seem to be generally conceived, which have only the effect of temporary laws; such as that clause in relation to wadsets, granted since the year 1649, and restricting the same to the ordinary annualrent, and making the wadsetters count for the surplus; and that clause granting power to redeem wadsets, notwithstanding the irritant clause were incurred; all which are but temporary laws, albeit conceived in general terms; and it is evident by this act, and all our laws, that where the King and Parliament design a general law, it proceeds always upon a special narrative and consideration; especially correctory laws, and does distinctly state, what was formerly observed, and the reason of the alteration; and then statutes, that it is to be observed in time coming, which is not done in this case; and, therefore, cannot be understood to be a general law. And albeit, the clause immediately preceding, relating to the prorogating of the legal of apprisings, from seven years to ten years, be a general law in that case; and that this clause is immediately subjoined, it cannot have the effect of a general law; because the foresaid clause, concerning the prorogation of the legal of apprisings, statutes, both as to the apprisings that are deduced, and that shall be deduced in time coming, which is not done in this case; there being nothing statute that shall be observed in time coming, and therefore, must be only understood in these special cases mentioned in the preceding part of the act; next there are several clauses in this act, which are subjoined to clauses, that are declared to be general laws, and yet have only a temporary effect; such as that clause, That if the creditor of such debtors, that had taken the benefit of the forbearance from personal execution, should be willing to take the debtor's lands and estate, in security and satisfaction of his debt, then the debtor should be obliged to give security, or sell his lands with such warrandice as the Lords shall appoint; which is no general law, but only an ordinance in this particular case; and this clause ought to be understood after the same manner; and, it is a certain principle, that a creditor may poind his debtor's goods, out of any part of his debtor's estate, or within his house; and may affect the rents by arrestments, and pursue for making furthcoming; and if the creditor may poind and arrest, much more may he possess any part of his debtor's estate, upon the account of the comprising. For, by that same reason in the analogy of law, that a debtor could debar his creditor, from possessing his house and mains, by virtue of his apprising, he might debar him from poinding and arresting his goods, upon the mains, or in his house, which were absurd to pretend. And albeit, these lands be allocate to the defender for his annuity, yet no provision of the father, of an annuity in his favours, or locality granted by the Lords, can prejudge a lawful creditor; as also the pursuer cannot be obliged to accept of a locality out of any other lands, seeing there is no part of the estate free of incumbrances; there being a number of other adjudications for great sums, which will much more than exhaust the value of the estate. And the practice alleged, doth not meet this case, it not having proceeded upon a full debate; and that which is now alleged, was not then represented; as also, it being but about a year after the act of Parliament, by which the legals of expired apprisings were prorogated for three years, it is evident, that decisions have been only in the case of these apprisings, the three years not being then expired, and so cannot be understood to be a rule in time coming.—The Lords found that the foresaid clause in the act of Parliament, had the effect of a general law; and that thereby the Lords of Session are empowered, in all apprisings, during the running of the legal, to restrict the appriser to such a parcel of the apprised lands as they think just, not being beneath, in yearly rent, the value of the annualrent of the sums contained in the apprising, and expences of obtaining infeftments thereupon; and that the said clause in the act, was not only to be understood, in the case of apprisings since the year 1652, and the legal expired; or deduced before the 1652, and the legal not expired at that time, the legal of which apprisings was prorogated three years by the said act; but also of all subsequent apprisings and adjudications coming in place of apprisings; and remitted to one of their own number to grant a locality to the pursuer out of any other part of the estate free of incumbrances. The Lords were much divided in this case, and the interlocutor was only carried by one vote; but as to this point, and as to the other defence; the Lords unanimously sustained the adjudication, as to the principal sum, annualrent and penalty; but not as to the fifth part more; and ordained an act of sederunt to be made, that in time coming, in such cases where the adjudication is led of the debtor's whole lands, that it should only be deduced for principal, annualrent and penalty, and not for a fifth part more, otherwise the adjudication is null*.
Fol. Dic. v. 1. p. 6. Sir P. Home, MS. v. 1. No 514.
*** The act of sederunt, made on the above-mentioned occasion, is as follows:—The Lords of Council and Session considering, That by the 19th act of the 3d session of his Majesty's 2d Parliament, concerning adjudications, it is statute and ordained, “ That, in place of comprisings, the Lords of Session, upon processes raised before them, at the instance of any creditor against his debtor, shall adjudge and decern to the creditor, in satisfaction of his debt, such part of the debtor's estate, consisting in lands, and other rights, which were in use to be apprised, as shall be worth the principal sum, and annualrent, then resting to the creditor, and a fifth part more besides the composition to the superior, and expences of the infeftment.” Likeas, by the said act, it is provided and declared, “ That in case the debtor shall abstract the writs and evidents of the lands, and other rights to be adjudged, and shall not produce a sufficient right thereof, and deliver the same, or transumpts thereof, to the creditor, as the Lords shall judge necessary; and in case he shall not renounce the possession of the lands, and other rights to be adjudged, and ratify the decreet of adjudication; in that case, it shall be leisome to the creditor to adjudge all, or any right belonging to his debtor, in the same manner as he might have apprised the same, conform to the act of Parliament 1661, anent the payment of debts betwixt debtor and creditor, in all points, under the reversion, and with the power competent to other creditors, expressed in the said act: And albeit it appears, by the foresaid act of Parliament, that where the adjudication is special, and proceeds upon probation of the rental, and the debtor's production of the writs, the decreet ought to be for the principal sum, annualrents thereof, and a fifth part more, without the penalty of the bond; but where the adjudication is general, in absence of the debtor, without probation of the rental, the decreet ought to be for the principal sum, annualrent, and penalty (if any be), contained in the bond, or other writ, which is the ground of the adjudication; yet, by mistake of the clerks, and their servants, some decreets of adjudication have been extracted, adjudging the debtor's whole lands, in satisfaction of the principal sum, annualrents, penalty, and a fifth part more: And the Lords, in some cases which have occurred before them, being unwilling hitherto to annul these adjudications, have restricted the same to the principal sum, annualrents, and penalty accumulate, contained in the decreet; in regard the stile of the summons concluding a fifth part more, has given occasion to the foresaid error: But, finding it expedient that the lieges be in a certainty as to this point for the future, they declare, That if, hereafter, any decreets of adjudication, proceeding without probation of the rental, and adjudging the debtor's estate in general, without restriction, shall be extracted for a fifth part more, they will not sustain and restrict these decreets of adjudication, but will find the same void and null, as if they had never been pronounced. And, to the end the lieges may be certiorate herein, ordain this act to be published at the market cross of Edinburgh.
Acts of Sederunt, Edit. 1790, p. 159.
* This case is likewise reported by President Falconer, as follows:—In the action of removing, pursued at the instance of William Wilson, merchant in Edinburgh, against Sir Alexander Home.
It was alleged for Sir Alexander, that the pursuer being a compriser or adjudger of Sir Alexander's estate, and the legal not being expired, could not pursue him to remove from his house and parks of Rentoun, in regard, by a clause in the act of Parliament 1661, anent Debtor and Creditor, it is expressly provided, That the Lords of Session, upon supplication made by the debtor before the legal be expired, may restrict the creditor to possess such lands as they think fit, the yearly rent not being under the annualrent of the sums contained in the apprisings or adjudications; likeas, the Lords of Session, by a decision 27th June 1662, betwixt Wilson and Sir William Murray of Newton, Found that Wilson might be restricted during the running of the legal of his apprising, to a parcel of the estate, and appointed the creditor to make choice thereof, (excepting the house and mains), and that if the rent thereof should be above the annualrent and public burdens, he was to be countable for what was over and above.
It was replied for the pursuer, That that clause was temporary, and did only extend to the prorogations of comprisings, the legal whereof being expired, was prorogated by that act, viz. comprisings deduced after 1652, whereof the legal was expired before the act; but does not extend to comprisings deduced after the date of the act, such as the pursuer's adjudication is; and at the time of the foresaid decision, which was in anno 1662, the years of the prorogation of the legal of the apprising therein mentioned were not expired.
The Lords found, That the clause of the act of Parliament was not temporary, but was a perpetual law, and did regulate comprisings as well deduced after the act as before; and therefore found, that they had power to restrict the pursuer's adjudication, and ordained him to chuse the lands he desired to possess, except the house and mains.
It was alleged, 2do, for the defender, That this adjudication was null, being a general adjudication of the whole estate, for principal, annualrent, and penalty, and a fifth part more; whereas, by the late act, anent adjudications, the fifth part more was only allowed where the adjudication was particular, of a certain parcel of the estate effeiring to the sum; but where it was general, it came in place of a comprising, and so the decreet could have been extracted for no more than principal, annualrent, and penalty.
The Lords found, That the adjudication being general, was unwarrantable as to a fifth part more; and therefore restricted the same to the principal, annualrent, and penalty; but did not annul the same simply, it being deduced before the Lords gave instruction to the clerks for certification of that abuse. But they appointed an act of sederunt to be made and printed, discharging adjudications of this nature to be for a fifth part more, and declared if any should be, they would find them null accordingly. There is an act of sederunt framed to this purpose, dated 26th February 1684.
