Subject_1 ADJUDICATION and APPRISING. Subject_2 RANKING of ADJUDGERS and APPRISERS.
George Mackenzie of Rosehaugh, v. The Creditors of Cockburn
Date: 27 January 1699 Case No. No 31.
An adjudger, on an heritable bond, with infeftment, obtained no preference, for the annualrent of annualrent accumulated; the adjudication being on the personal obligation, not upon the poinding of the ground.
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In the competition of the Creditors of Cockburn, Rosehaugh was preferred upon an infeftment of annualrent; and, since the decreet of preference, he adjudged the property for principal, annualrent, and penalty; and alleged, That he had right to affect the price of the lands sold by roup, not only for his preferable annualrents, but likewise for the annualrent of annualrent accumulated by the adjudication, as a legal consequence of his right.
It was answered: 1mo, The decreet of ranking is opponed, which being the rule of payment, and application of the price, he must be regulated by it. 2do, An adjudication for the bygone of an annualrent, may be pleaded to be drawn back ad suam causam, where there is a preceding poinding of the ground, and an apprising or adjudication for the annualrents only; but, where an adjudication is led for principal, annualrent, and penalty, there is no preference or privilege for the bygones of the annualrent, more than for the principal sum; and seeing Rosehaugh, as an adjudger, will be after all the real creditors, he can have no benefit thereby, as was found, the 22d of December, 1671, Campbell against ——.Stair, v. 2. p. 33. See Right in Security.
“The Lord found, That the adjudication being upon the personal obligement, and not upon the poinding of the ground, the same had no privilege to be drawn back as to the annualrents; but that he was only to be ranked thereupon amongst the other adjudgers.”
