Subject_1 ADJUDICATION and APPRISING. Subject_2 LEGAL of APPRISINGS and ADJUDICATIONS.
Hay v. Hays
Date: 6 July 1699 Case No. No 9.
An adjudication was led, for several debts, contracted, some prior, some posterior, to inhibition by another creditor. The adjudication expired, without intromission or payment within the legal. Found, That the legal conveyed the whole right to the lands adjudged, without respect to the sums contracted after inhibition, or though part of them had been paid within the legal.
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In the competition between John Hay of Alderstone, and the Children of Hay of Aberlady, this new point came to be decided. Alderston's adjudication was led for sundry sums due by Stuart of Kettlestone, whereof some were prior to the inhibition served by Aberlady, and others posterior. The adjudication was expired, neither was there any intromission, or any other payment made to the adjudger within the legal; but Aberlady's heirs contended, the lands adjudged could only be affected with the sums prior to the inhibition proportionally with the sums posterior; and so the debts contracted after the inhibition being swept of by the reduction, a proportional part of the lands adjudged fell in consequence, and so must be carried by the children's adjudication; which, though it cannot compete with Alderston's adjudication (being without year and day) in so far as extends to the sums prior to the inhibiton, yet must be preferred to it quoad a proportion of the lands and subject adjudged, effering to the sums contracted after the said inhibition; and this was under the Lords view and consideration in the decision 10th February 1674, Doctor Blyth against the creditors of Dairsie*.—against this it was alleged for Alderston, That his adjudication being expired, it was the same thing in law whether it expired as to the hail sums, or only quoad a part; for though it were all paid to 100 merks, yet, if that be resting at the elapsing of the legal, it carries the entire property of the lands, as much as if the whole had been standing out unpaid, seeing a debtor sibi imputet
* Stair, v. 2. p. 263. See Competition.
that he did not redeem; neither does law consider the right of the adjudication, either with respect to any part of the sums extinguished by payment, as long as there be other sums unpaid for which it was led; nor does it regard any proportion of the adjudged lands as unaffected, seeing it is a jus individuum which resides in the sums prior to the inhibition, or the sums yet resting unpaid, though all the rest be cut off; and the foresaid case of Blyth only reserved that point, but noways decided it; and an inhibition is only a prohibitory diligence, and gives no positive right, neither can it bring in their adjudication to compete with Alderston.—It was likewise urged, if it had been led for the anterior sums allenarly, and expired, then it would have carried the property of the lands; and why shall it be in a worse case by having sums posterior to the inhibition; for utile per inutile non vitiatur?——The Lords found the sums adjudged for in Alderston's adjudication, prior to Aberlady's inhibition, being still resting unpaid when the adjudication expired; the legal conveyed the right of the whole lands adjudged without respect to the sums contracted after the inhibition, or though part of them had been paid within the legal. This new decision was reckoned conform to the analogy of law; though some pleaded for equity, to cut off sheriff-fees or exorbitant penalties, if there was only a small part of the sums resting at the expiring of the legal. (See Inhibition.)
