Subject_1 JUS SUPERVENIENS AUCTORI ACCRESCIT SUCCESSORI. Subject_2 SECT. III.
To which Successor does the Right accresce?
William Duncan v. James Nicolson
Date: 11 January 1699 Case No. No 21.
An adjudication led without a special charge, was not rendered effectual by the subsequent infeftment of the apparent heir.
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Phesdo reported William Duncan, and James Nicolson, late Dean of Guild in Edinburgh. It was a competition, as creditors to John Aikenhead; and it was objected, That Mr William Walker's adjudication, to which the Dean of Guild had right, was null, wanting a special charge. Answered, A special charge being only a fiction, introduced by law, to supply the want of an infeftment, it was sufficient that Aikenhead, the apparent heir, was afterwards served heir and infeft, (as de facto he was,) which must accresce to validate the said adjudication, and to supply the want of a special charge, seeing jus superveniens auctori accrescit successori. Replied, Whatever this right of accrescing might do in the case of two voluntary dispositions, granted by an apparent heir, yet that does not hold in the case of a legal diligence by adjudication, which being once null, can never he supplied, according to l. 29. D. De reg. jur. Quod ab initio non valet, id tractu temporis convalescere non debet; 2do, The serving and infefting the heir was done by Duncan, to complete his own security; and it were absurd, that his infefting Aikenhead, to validate and perfect the disposition he had got from him, should accresce to a third party, to be detorted to his prejudice; for, actus agentium non operantur ultra eorum intentionem, much less contra eorum intentionem. Duplied, Duncan's right was a gratuitous disposition omnium bonorum, and ought not to compete with a lawful creditor; and the rule, quod ab initio vitiosum est, has many exceptions, as l. 85. § 1. and l. 201. D. De reg. jur. Non est novum ut ea durent, licet ille casus extiterit a quo initium capere non potuerunt; 2do, Seeing it is acknowledged, that the subsequent infeftment would complete a prior voluntary right, why not also a legal one, there being no disparity, and diligences being more favourable than conventional rights. See Stair, 21st July 1671, Neilson against Menzies, No 20. p. 7768.; and in his Institutes, tit. Dispositions. And the intention of law is more to be regarded here than the intention of parties. The Lords thought the case new; and ordained it to be debated in their own presence.
This subtile point being advised by the Lords, 7th February 1699, they found the adjudger, having omitted to charge the apparent heir to enter, he cannot, on his own neglect, plead the benefit of the subsequent service and infeftment; and, therefore, preferred the disposition. Sundry of the Lords thought the service so far retrotracted, as to make the adjudication subsist for principal and annualrents, and only to cut off the accumulations. But this was not decided.
Fol. Dic. v. 1. p. 515. Fountainhall, v. 2. p. 33.
