Subject_1 ADJUDICATION and APPRISING. Subject_2 RANKING of ADJUDGERS and APPRISERS.
Sinclair of Southdun v. Sinclair of Barack
Date: 21 June 1704 Case No. No 5.
Of two adjudications in implement; the one on which the superior had been charged was preferred.
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This was a competition betwixt two adjudications, both of them being for implement of dispositions. Southdun craved preference, because he had charged the superior to infeft him, and the other had neglected it. Alleged, This step of diligence, by a charge against the superior, was in this case preposterous, nimious, and unwarrantable; for though, in adjudications for debts, the superior is obliged, by act of Parliament 1669, to receive the adjudger, on his paying a year's rent; yet in adjudications for a fact, such as implement of a disposition, (which has no legal,) there is neither law nor custom obliging the superior to receive or infeft such an adjudger; for, by the ancient feudal customs, which are become our law, the superior was not obliged to change his vassal, or to accept of a stranger; and alienations of feus were strictly prohibited, only the favour of true and lawful creditors procured some relaxation by the 36th act, Parl. 1469, that superiors were then obliged to receive creditors apprising for their vassals; but so, that if superiors pleased, they might take the land to themselves, they paying the debt, which the commentators call jus retractus feudalis; and that being a correctory law, it cannot go beyond its case, nor extend to apprisings or adjudications for implement of dispositions: And Craig complains, that they had fallen upon indirect methods in his time to compel superiors to receive strangers for their vassals, by granting simulate bonds for sums of money, and apprisings thereon; so that quod directe non licebat et erat prohibitum, erat per ambages permissum.—Answered, At the time of the act 1469, alienations of land by vendition or sale, were very rare in Scotland, and so no law could be made for regulating them, or superiors; but, these 150 years bygone, such bargains turning frequent, the style of adjudications, on such dispositions of sale, is fixed, and bears a warrant for letters of horning against the superior, for charging him to infeft; which could never be, if he were not in law obliged: And to deny this, were to make these adjudications for implement altogether elusory and ineffectual; especially seeing a bond may be taken for the price; and if the adjudication proceed on that bond, then the superior can be forced to infeft, on payment of a year's rent, and so has no prejudice: And Barack having omitted to charge, can never compete with me. Dirleton, voce Adjudications, p. 1. states this question, If a superior may be forced to enter an adjudger upon a disposition? and makes his ratio dubitandi, because the overlord in that case, has not retractum feudalem, and leaves it undecided. ——The Lords thought the diligence, by charging the superior, warrantable, and that to find otherwise, were to insignificate all the adjudications which have been led for implement of dispositions; and therefore preferred Southdun, who had charged on his adjudication to Barack, who, apprehending superiors not obliged to enter parties on such charges, did neglect that step of diligence as superfluous.
This question is only as to subject-superiors; for quoad the King, who is pater communis suæ patriæ, all his people are alike to him.
Fol. Dic. v. 1. p. 16. Fount. v. 2. p. 231.
*** See report of this case by Dalrymple, p. 56. Quarto Dictionary.
