Of facts inferring knowledge of, and consent to the right challenged. Effect of consent where the right is not known. Effect of legal steps passing of course. Effect of minority. Effect of payment.
Charles Charters v. Andrew Barry
1687.
February. Case No. No 33.
Ignorantia juris, where a party subscribed a deed, found no reason for homologation.
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An appriser claiming an equal share of the lands apprised with the first effectual appriser, who was more than year and day before him, upon this ground, that it was marked in the decreet for mails and duties, that the preferable appriser consented to bring him in pari passu with himself, Alleged for the prior appriser; That he disowned any consent; and no such thing was subscribed by him, nor can the clerk's assertion bind it on him.
Answered; The pursuer, after extracting of the decreet of mails and duties, granted a joint factory with the defender for uplifting the rents of the tenement apprised, and applying to their two apprisings pro rata; and the factory narrates the decreet, though it mentions not the consent.
Replied; It was ignorantia juris that made the defender subscribe such a factory, and so it can be no homologation of the consent.
The Lords sustained the factory as a homologation of the decreet and consent therein expressed.
Harcarse, (Homologation.) NO 507. p. 142.*** Sir P. Home reports the same case.
Thomas and Alexander Weirs having adjudged certain tenements in Edinburgh from John Scot, and thereupon being infeft, and having pursued for mails and duties before the Bailies, and there being compearance made for John Barry who had adjudged within year and day of the Weirs, and craved to come in pari passu with them; and likewise Charles Charters having compeared, who had adjudged within year and day of Barry, but not of the Weirs, and craved to come in pari passu with the prior adjudgers, upon the payment of a proportional part of the expenses of passing infeftment to the Weirs the first adjudgers; and, upon Barry's consent, Charters being allowed to come in pari passu, upon which there being a decreet extracted, and the creditors having granted a factory for uplifting of the rents, by which the factor was to be countable to creditors for their respective interests; and Barry having, thereafter, raised a reduction of the decreet and factory against Charters, upon this reason, that the act of Parliament allowing adjudgers and comprisers to come in pari passu, is only in the case of a comprising or adjudication led within year and day of the first effectual apprising or adjudication; but, seeing Charles is not within year and day, the Weirs, who were the first adjudgers, and who had completed their adjudications by infeftment, albeit they be within year and day of Barry, who was within year and day of the Weirs, who had the first effectual adjudication, they cannot be allowed to come in pari passu, neither with the Weirs nor with Barry; answered, That it appears by the decreet for mails and duties before the Bailies, that Barry consented that Charles should come in pari passu with him, and he has homologated the said decreet, of consent, in so far as he did subscribe a factory with Charters and the other creditors to a factor for uplifting of the rents and paying of the same, conform to the creditors' several interests mentioned in the decreet. Replied, That the mentioning Barry's consent in the decreet is not sufficient, unless the consent had been subscribed, especially being but a decreet of an inferior court. Duplied, That Barry having consented judicially, the extract of the decreet under the clerk's hands, bearing the consent, is as sufficient as if he had subscribed the consent, and albeit it were not sufficient, yet Barry having subscribed the factory, which relates to the decreet, it is a sufficient homologation and equivalent as if he had subscribed the consent. The Lords found that John Barry, by the granting the factory, did homologate the decreet of preference, and therefore assoilzied from the reduction.
