Subject_1 ADJUDICATION and APPRISING. Subject_2 ADJUDICATION in IMPLEMENT.
James Sinclair v. Sinclair of Barack
Date: 21 June 1704 Case No. No 5.
Of two adjudications in implement; the second, on which the superior had been first charged, is preferred.
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In a competition betwixt James Sinclair and Sinclair of Barack; both founding upon adjudications led for implement of dispositions, it was alleged for Barack, the last adjudger: That he ought to be preferred; because he had first charged the superior to enter him, which is equivalent to an infeftment.
It was answered:—Both adjudications being led for implement of dispositions, the superior was not bound to enter either; because, by the feudal law, a superior was not bound to receive any other vassal, but by his own free consent; and, albeit their be several statutes obliging superiors to enter apprisers; which is also, by other laws, extended to adjudgers; upon payment of a year's rent; yet all these statutes relate to apprisings, or adjudications, for liquid sums of money; in which cases, the superior hath his option, either to enter the vassal apprising or adjudging, or to undergo and pay the debt for which the diligence is led: whereas, in an adjudication for implement, the superior would want the benefit of redeeming by payment of the debt, which law provides to him; and this very case is stated by Sir John Nisbet, as a doubt, p. 1.; and the reason he gives is, that the superior has retractum feudalem, by paying the creditor; which takes no place in the case of dispositions; and there is no reason to oblige the superiors to receive adjudgers in implement, more than resignations upon voluntary dispositions.
It was answered:—That anciently conveyances of lands were little known, except by succession, marriage, or forfeiture; and most feus being originally gratuitous, the interest of the superior was great; but afterwards, conveyance of lands came to be more frequent, both by voluntary purchases and diligences, and the interest of superiors limited; especially in favours of creditors. And the first vestige of comprising, mentioned in the law, is 37th act, 5th Parl. James III. which authorises comprising of land, and obliges the superior to enter comprisers, upon payment of a year's rent; or pay the debt. Adjudications were not then, nor for some time thereafter, known; but, in process of time, adjudications were introduced, of two sorts; one upon the reunciation of apparent heirs contra hæreditatem jacentem, and the other for implement of facts; which was a diligence Introduced, not by statute, but by custom, to make obligations effectual. And such adjudications did always proceed by process before the Lords of Session, not as comprisings; and, by the constant uniform style, the superior is decerned to enter adjudgers; and horning passes thereon of course. And the common style of dispositions bears an obligement, to infeft and sease the receiver of the disposition; which obligements were frequently the only foundation of real rights, when procuratories of resignation, and precepts of sasine did expire by the death of the buyer or seller. And by the 18th act, Parl. 1669, a year's rent was appointed to be paid by adjudgers to superiors, in the same way as comprisers; which act could only relate to adjudications contra hæreditatem jacentem, and in implement; because, then, comprisings were in force for liquid debts; and if it were not so, adjudications in implement would be elusory and ineffectual, unless the superior did freely and voluntary make them good; which would be a manifest defect in the law; and as necessity did introduce them, the same necessity must give them their full effect. And as to the superior's privilege of redeeming, that might be valuable, when first introduced; but superiors have not of late laid any claim to it: not can it be of use; because, when diligences pass now, they generally exceed the value; and vassals designing to alienate, grant bonds, even gratuitous, to what value they please, which a superior cannot impugn.
‘The Lords preferred the second adjudger, who first charged the superior.’
