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Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
David Hepburn of Humby v. The Viscount of Kingston
1694.
Nov.23and
Dec.6.
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November 23.—He, pursuing for maills and duties on two adjudications disponed to him by his sister the Lady Whittingham, they raise a reduction on thir grounds:—1mo. The adjudication is null; because it is from ——— term of her annuity, to ——— term; and all then due did not extend to the sum adjudged for. 2do. The advocates craved it only for the 2000 merks of annuity; and yet they also adjudge for the penalty. The Lords repelled thir two, as of no moment; for it was not instructed by discharges that the preceding terms were paid: and the Lords thought, where procurators crave a decreet for an annuity, that the failyie followed as an accessory consequence, unless he had restricted the libel.
The third reason was also repelled, viz. That the party called in the decreet of poinding of the ground being dead, and the terms there resting being now paid, there behoved to be a new decreet obtained for constitution of the debt. For the Lords found, That, though both master and tenants were changed, and though the lands should go through twenty hands, yet the first decreet of poinding of the ground subsisted against all successors.
But they demurred on the fourth nullity, viz. That the Viscount of Kingston, not being the granter of the liferent-infeftment, but only apparent heir to him, he should have been charged to enter heir before any adjudication could proceed against him; which the Lords had found was necessary in comprisings, 25th February 1627, Earl of Cassillis; and 29th January 1635, Moncrief. The Lords were divided on this: some thinking it a nullity to restrict the adjudication to the principal annuity, and to cut off the accumulation of its bearing annualrent; which was all the extent for which the objection was urged: and others, thinking there was no need for a previous charge, because the apparent heir, being cited pro interesse, the ground was the direct party-contradictor, and the style run in all decreets of poinding of the ground, that, failing moveables to poind, then to apprise the ground-right and property; though some doubted how the apparent heir could be divested of his property without a previous charge to enter. However, the Lords desired to hear the case argued in their own presence; but seemed clear that the failyies, not being here due by a clause in the body of the real right, but only by a personal obligement, the adjudication might be restricted quoad these, there being no charge, and that they ought to be cut off and defaulked.
Vol. I. Page 644.
December 6.—Between Humby and Lord Kingston, mentioned 23d November 1694. The Lords thought lit to decide the general point in that debate, for ascertaining the writers to the signet in such processes, Whether, in adjudging from an apparent heir upon a decreet of poinding of the ground, there needed any other constitution of the debt, or a previous charge to enter heir, either general or special. Besides what is already marked, the 106th Act, Parliament 1540, was urged; and Sir George Lockhart's opinion, in his Compend of Dury's Practiques, where he says, that non transit sine difficultate; but the act was thought to relate only to personal debts. On the other part, it was objected,—What if the ground out of which the annualrent was due be sold to a third party?—must he or his heir be charged?
The Lords, by plurality, found the adjudication formal, and that the want of a charge imported no nullity. But, by a second vote, the decreet of adjudication being null, through adjudging for the termly failyies, which are personal and not real, that this was sufficient to annul it as to the exorbitancies of the expired legal, or the accumulations of annualrents; for, not only he that dolo et lata culpa adjudges for more than is due is restricted so as to subsist only for a security, but also where, per ignorantiam juris, they have omitted a necessary solemnity in law; for, quoad the penalties, a charge behoved to have preceded.
