Subject_1 ADJUDICATION and APPRISING. Subject_2 RANKING of ADJUDGERS and APPRISERS.
Dewar v. French
Date: 31 January 1695 Case No. No 12.
Adjudgers of a disposition, with procuratory and precept, but no infeftment, ranked pari passu; the one having taken infeftment, the other not.
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Whitelaw reported the competion between Mr David Dewar, advocate, and David French, writer, anent Major Arnot's wadset on Lovel of Cunnochie's lands. The Lords found Dewar's adjudication null, and would neither sustain the one extract nor the other, because both of them laboured under nullities and defects; the one omitting the deducing of the bond, at least having it interlined; the second not decerning the tutors and curators, and not mentioning the charge to enter heir. But some of the Lords thought he might yet be allowed to extract a formal decreet from the warrants, seeing French was then Mr Dewar's servant and trustee, and should have obviated these nullities. But this point was ordained to be further heard.
The competition between Mr David Dewar and David French, was reported on 6th December. They were both adjudgers of the estate of Cunnochie, from Major Arnot, who had right thereto by disposition from John Scot, but was not infeft thereupon. David French had both a suspension on multiple-poinding, and a reduction, and craved to be preferred to Mr David, albeit his adjudication was several years posterior, because Mr David's proceeded only upon a general charge against the Major's heir, which did not sufficiently denude him, whereas he had likewise raised a special charge; likeas he was first infeft, in so far as he had perfected the Major's right from John Scot, by taking sasine on the procuratory of resignation and precept of sasine therein contained, conform to the allowance introduced by the new act of parliament 1693, whereby these procuratories, being mandates, non gratia mandantis sed in rem suam, they did not expire either by the death of the granter or the receiver. Answered, for Mr David Dewar, That his adjudging on a general charge had sufficiently denuded his debtor, Major Arnot, who was not infeft; and he had farther charged the Archbishop of St Andrews, superior, to infeft him, which was more than he needed to have done; and, by the 62d act of Parl. 1661, it was declared to be the first effectual apprising, where either the party obtained himself infeft, or did exact diligence to procure the same; which the tract of decisions since have explained and construed to be the giving a charge to the superior, and so he did all that was either competent or necessary for him to do, according to the law then standing. Replied, This was not the habile way; but he ought to have convened John Scot, who stood last vest and seized, or his heirs, to renew the precept and procuratory, and thereby have denuded them; which David French having done æquivalenter, by completing Major Arnot's right on the supervenient law, he ought now to be preferred, as having the first complete perfected right; even as if Major Arnot had made two voluntary dispositions, and the receiver of the last had got his infeftment first expede; or, in the case of two gifts of escheat, if he, who had the last gift, should obtain the first decreet of declarator. The Lords thought the point new, whether the denuding the heirs of Scot, and perfecting Major Arnot's right from him could give any preference; yet they repelled the reason of reduction against Mr David Dewar's adjudication; and quoad the mails and duties, brought them both in pari passu, as if they had been within year and day, Mr David paying the other the expences of his infeftment.
Fol. Dic. v. 1. p. 18. Fount. v. 1. p. 664. and 684.
