Subject_1 ADJUDICATION and APPRISING. Subject_2 What SUBJECTS are carried by APPRISING and ADJUDICATION.
Alexander Stuart of Torrence v. Walter Stuart of Pardovan
Date: 26 June 1705 Case No. No 14.
An heritable bond is adjudgeable, even before the term of payment, though no infeftment has followed.
Interlocutor.
Effect of citation in an adjudication.
Interlocutor.
Effect of a decree of adjudication.
Interlocutor.
Click here to view a pdf copy of this documet : PDF Copy
Walter Cornwall of Bonhard having, upon the 27th of February 1700, granted an heritable bond to George Dundas merchant in Leith, for the sum of L. 10,600, payable at Lammas thereafter, with annualrent, commencing from the preceding Candlemas, and in time coming after the term of payment, upon which no infeftment followed; Walter Stuart of Pardovan, a creditor to George Dundas, did raise summons of adjudication of that money, which was executed 6th July 1700, and obtained decreet 20th February 1701. Alexander Stuart of Torrence, another creditor, arrested it 9th July 1700, and obtained a decreet of furthcoming upon the 9th July 1701. There arose a competition betwixt these creditors, each of them claiming to be preferred upon his diligence.
The first ground of preference urged for Torrence was, That his arrestment had been laid on before the term of payment of either principal or annualrents, at which time the bond was purely moveable, and not affectable by adjudication. Because, if George Dundas had died when arrestment was used, or at any time before Lammas that year, the sum had not gone to heirs, but to executors and nearest of kin, as being moveable in the construction of law, 29th June 1624, Smith against Anderson's relict, (See Heritable and Moveable.) Or if he had been denounced to the horn before Lammas, and his escheat duly gifted and declared, the donator would have had right to it: Bonds, heritable by a clause of annualrent, being moveable to all intents and purposes, before the first term of payment of the annualrent. And the reason is, because till then, they are not considered as jura fixa, but rather as so much money in the creditor's hands unsettled. Now, if the creditor had intended to have the bond in question debord from the common nature of bonds bearing annualrent, he would either have secluded executors expressly, or taken infeftment before the term; and, seeing he did not what he might have done, Law presumes, his design was, the bond should continue purely moveable, until the first term of paying annualrent.
Answered for Pardovan, That by the 32 act, 1 Parl. Cha. II., declaring all bonds moveable, except where they contain an obligement to infeft, or seclude executors, the nature of bonds bearing annualrent was not changed, but they are only made moveable, by way of privilege, as to nearest of kin, executors, and legators; and therefore, where the question is not betwixt heirs and executors, bonds bearing annualrent retain still their nature of heritable, and adjudgeable as before the act of Parliament 1641. 2do, The bond in question was heritable in terms of the 32 act, Parliament 1661, in so far as it contained an obligement to infeft, which imported the creditor's design to have the sum heritably secured; and albeit the 51 act of that same Parliament declares, bonds bearing annualrent, whereon infeftment never followed, to be arrestable; it provides at the same time, That this shall no ways change the nature of the said sums, nor prejudge any persons as to their heritable rights to the same. It matters nothing that neither the term of payment of the sum, nor of the annualrent was come: For the bond, of its own nature, by the conception of it, was as much heritable in the sense of law, the very minute it was subscribed, as if actual infeftment had then been taken. In which case, it could not have been controverted, but that the same was adjudgeable, even though the creditor had died the very next day. But whatever might be pretended in the case of a creditor's dying before the term of payment, that does not meet the present question: For the reason why sums in that case are found moveable is, because the clause adjected for payment of annualrent at the term, does not take effect in the defunct's own time, so as to make it profitable to his heir. Whereas, here the creditor is still alive, and the bond carried annualrent from the date; and so being essentially heritable, it matters not though the term was not come, at the time of the citation upon the adjudication. This is confirmed by decisions, January 8. 1624, Bairns of Colonel Henderson against Murray, (See Heritable and Moveable); July 31. 1666, Gray against Gordon, (See Escheat). And albeit, the citation upon the adjudication was before the term, the day of compearance was after. Therefore, the bond was certainly heritable at the obtaining of the decreet of adjudication.
Replied for Torrence, There is no ground in law or custom for a distinction betwixt heritable and moveable bonds, as to the effect of succession, and as to the effect of creditors diligence; for, it is certain, that all bonds whereupon infeftment hath not followed, are moveable before the term of payment, or first term's payment of annualrent, quoad creditorem. 2do, As to the case of Colonel Henderson's Bairns against Murray, January 8. 1624, the same respects only the term's annualrent of the sum, falling due after the creditor's death, where there had been infeftment on the bond before: for else there had been no controversy, seeing the current term's annualrent is certainly moveable. And, in the decision, Gray against Gordon, the bond did only bear annualrent after the term, which was cast at the distance of some years from the date, and the creditor's decease; and was found to be heritable in favours of an assignee, against the fisk and donator of escheat, who is odious. 2do, The act of Parliament 1661, whereby debts not Secured by infeftment may be either arrested or apprised, is not to the purpose, for it does expressly presuppose an heritable subject, which in former times was not arrestable, and allows the same to be arrested now; without prejudice to those that have a mind to comprise the same in a habile way, viz. after they are become heritable by elapsing of terms. 3tio, The whole process and decreet of adjudication must derive its force and virtue from the summons and citation, which is primus actus judicii: Insomuch, that if the subject was not heritable or adjudgeable, then the summons and citation were null, and the decreet following thereon inhabile and incompetent; according to the rule of law, quod ab initio vitiosum est tractu temporis non convalescit. Therefore arrestment used by Torrence, while the subject was affectable by no other diligence, followed with a legal and formal decreet of forthcoming, must undoubtedly be preferred to Pardovan's adjudication, upon a citation when the subject was incapable to be affected by such a diligence.
The Lords considering, that by the 51 act, Parliament 1661, heritable sums before infeftment actually taken, were capable either of arrestment or adjudication; and, that it was the interest of creditors to have as many ways as law can allow, to affect their debtors estates; therefore, they found the heritable bond adjudgeable before the term of payment, as well as arrestable.
Alleged for Torrence, That he ought to be preferred on his arrestment, though posterior to the citation in the adjudication; because, citations proceeding upon blank summonses, clear nothing of the pursuer's design, and put no restraint upon the receiver; all their effect being only to render the subject litigious; where as diligence of arrestment, how soon laid on, is a nexus realis; the copy bears expressly the user's intention, and puts the receiver in mala side to dispose of the subject affected. So that the act of Parliament 1672, declaring citations of adjudication equivalent to a comprising clothed with infeftment, is only understood to take effect in a competition with voluntary rights; and not to prejudge legal diligence, such as arrestment; 1st February 1684, competition betwixt Anderson and Crichton, (See No 6. p. 79.) For if a summons of adjudication, were a diligence of that nature and efficacy, to draw back the subsequent decreet to its date, an adjudger would have right to all the fruits, accessions, and profits, from the citation; whereas the decreet carries only right to these from the date of it, and is but effectual from that time as to the benefit of year and day, and coming in pari passu with the first effectual adjudication. Arrestment, on the other hand, doth so fix the Subject of it, as the decreet of forth coming is always effectual, and carries the profits and consequences from the time of the arrestment, whereby the property seems to be transmitted. For the design of a forthcoming, is not so much to complete the right acquired by arrestment, as for declaring, that the arrester hath not past from his diligence, and for certiorating the debtor, in whose hands the arrestment was used, and to lay the foundation of diligence against him. Yea, an arrestment used before the term of payment, hath been preferred to an apprising obtained before, and completed by infeftment after the term, before the decreet of forthcoming; July 2. 1667, Litster against Aiton and Sleich, (Stair, v. 1. p. 467. See Competition.) Where it might have been pleaded, that the appriser had the first complete diligence, and the arrester had no benefit of the priority; both arrestment and apprising being before the term of payment; but yet the decreet of forthcoming was drawn back to the date of the arrestment, and preferred to the intervening complete diligence, by apprising and infeftment. So that the common brocard of prior tempore potior jure, and of the first inchoat and first complete diligences, are not to be mentioned here; for these take only place in competition of diligences of the same kind, that are effectually completed after the same manner. 2do, As Torrence's decreet must, for the reasons foresaid, be considered in law, as of the same date with the arrestment, and therefore, prior to the decreet of adjudication; so he was in cursu diligentiæ from the laying on of his arrestment, and per eum non stetit, that his decreet of forthcoming was not obtained before the other's adjudication; and, if the course his forthcoming required, took up more time than Pardovan's adjudication; that ought not to prejudge him, a lawful creditor, who was never in mora.
Answered for Pardovan, The citation, upon the adjudication, is a diligence affecting the subject, as really as arrestment doth that which is arrested. And, an execution of arrestment, is a general arresting all sums of money or goods in such a persons hands, due, or belonging to the arrester's debtor, for satisfying the debt, which was the ground of the arrestment. The notion, that arrestment lays on a nexus realis has no foundation in our law; and, the contrary is clear from many instances; as a creditor may poind, notwithstanding of a prior arrestment; a second arrester, insisting with diligence, in his forthcoming, is preferable to the first, who has been in mora; and, arrestment upon a depending action, may be loosed upon caution. But an arrestment is only a legal prohibition, to alter the condition of the thing arrested, or to pay the arrester's debtor. And if the person, in whose hands arrestment is laid on, happen to die before complete diligence by forthcoming, the arrestment falls to the ground, and the defunct's successor may safely pay and dispose of the subject arrested; which seems inconsistent with the nature of a nexus realis. 2do, The act of Parliament 1672, makes a citation upon a summons of adjudication, equivalent to an apprising with an infeftment thereon; so that the citation in the adjudication, was a complete diligence without the decreet, at least preferable to the inchoat prohibiting diligence of arrestment: Which is clear from the 51 act, Parliament 1661, that introduces the privilege of arresting heritable debts, not secured by infeftment: For there it is expressly declared, that the act is without prejudice to the comprising of heritable sums, by such as think not sit to arrest; whence it follows, that every step of diligence, in the comprising or adjudication, prior to the other diligence of arrestment, is also preferable. The single decision 1684, does not meet the present case. For there arrestment was laid upon the bygone rents of lands, in the hands of tenants, and was certainly prior to the citation upon the summons of adjudication: Seeing the Lords found the citation ought not to prejudice the arrestment. But our question is about the stock or subject itself, and not concerning rents or profits; and the decreet of adjudication is prior to the sentence of forthcoming. It avails not, that the arrester was in cursu diligentiæ, and could not, by the course of the rolls, bring in his action sooner: For sibi imputet, that his forthcoming was not decerned as soon as the adjudication; seeing the former might have been summarily discussed as the latter was, upon application to the Lords, representing that the common debtor, had not personam standi, by reason of hornings and captions. Now, adjudication being a proper diligence for affecting the subject, and the legal steps of form being observed; if it fell to be decerned before the forthcoming could be brought to a period, it is a privilege allowed by law to the user of that way of diligence; and, the arrester, who chose rather to prosecute his claim by a more tedious method, has himself to blame, if he find not his account in the procedure.
Replied for Torrence: Arrestment is certainly a more fixed and special diligence than a summons of adjudication, which mentions no subject, tells neither where nor by whom due, and differs something from a denunciation of apprising. The nexus realis of an arrestment is not carried so high, as to be like a real infeftment upon lands, but is only pleaded as a piece of diligence, effectual to draw back the decreet of furthcoming to the date on it, tanquam ad suam causam; which effect a summons of adjudication has not. Though a creditor might poind without regard to a prior arrestment, that does not weaken the nexus, as to the other effect in a competition with an adjudication; but only argues. that poinding is a diligence of a distinct nature from both; being a decreet and present execution at the same time, whereby the subject arrested is taken away, that it cannot be made furthcoming. But where the subject continues extant in the debtor's hand, it must be made furthcoming, cum omni causa, from the date of the arrestment: And, if a second arrester be preferred to the first, it is because the first has been negligent; which cannot be charged upon Torrence. Nor is his arrestment loosable upon caution; and, if it were, then caution comes in place of the subject as an equivalent. Arrestment must be renewed upon the death of the person in whose hands it was used, that the arrester may not want a party; and, as there is no representation in succession to moveables, so they are not so permanent as to continue affected by diligence, commenced against a predecessor. 2do, There is no imaginable disparity betwixt the present case, and that of the cited decision, 1684. It is true, the mails and duties were arrested, and here a sum of money: But that difference was not the ratio decidendi, nor had any influence upon the decision, which plainly expresses, that citations can only hurt voluntary rights; and there is no speciality as to one subject of arrestment, more than another.
The Lords finding Pardovan's inchoate diligence, by citing on his adjudication, to be prior to Torrence's arrestment, and the consummated diligence by decreet of adjudication also prior to the decreet of furthcoming: They preferred the adjudication.
A third ground of preference insisted on by Torrence was, That, besides his arrestment, he had also the first decreet of adjudication, which was a complete diligence finally denuding the debtor, and excluding all subsequent adjudgers; the subject adjudged being a liquid bond, never clothed with infeftment: And there-fore Pardovan's adjudication, though within year and day, could not come in pari passu. Because, the act of Parliament, 1661, does only relate to comprisings, or adjudications of subjects, whereupon infeftment has followed; that is, adjudications which want to be completed by infeftment. For an effectual comprising being there stated, as the rule and measure of preference, that determines who should come in pari passu: Where that standard is not found, the law cannot take place. 2do, As Torrence is founded in the precise words of the statute, which respects only comprisings whereupon infeftment followed, or the superior was charged: He is also founded in the analogy of law, which considers adjudications as legal dispositions. For, as a voluntary disposition would have carried the subject in controversy, and made a complete right, without necessity of infeftment; a legal disposition will more certainly do it.
Answered for Pardovan. To single out one instance in a law to exemplify and illustrate the same, and make that instance to influence the whole against the main design and express terms, does contradict common reason, and the known rules of interpretation. Now that all adjudications led within year and day should come in pari passu, is clear, both from the express words of the statute 1661, while it speaks of comprisings effectual by infeftment, or otherwise, and from the reason and narrative of it. And, if it were not so, the design of the act, which is calculated to introduce equality, as much as possible, among creditors, would mostly be eluded: For a person, better acquainted with his debtor's circumstances, or nearer the place where he resides, should prevent and hinder the other creditors of the benefit of affecting the common debtors' means by an accident, that cannot be attributed to them. And to allow this, because, forsooth, their debtor has not taken infeftment on his right, is not only against the common principle of law, but would give occasion to debtors to prefer what creditors they please. 2do, That the act is to be understood of all rights adjudgeable, as well as those whereupon infeftment follows, is not only clear from the plain and general words of, It is statute and ordained, That all comprisings, &c.; but also from the particular word estate, made use of to signify the subject affectable, which comprehends dispositions, heritable bonds, and other rights adjudgeable, whereupon no infeftment has followed. 3tio, The exception, in the act of ground-annuals, and other debita fundi, confirms the rule as to all other cases not excepted. 4to, The effectual comprising by infeftment is expressed exempli causa; and there was also this reason for naming it, rather than any other, That since posterior apprisings, within year and day, of him who wared out his money in securing his right by infeftment, were brought in equally with him, it was justly ordered, That they should pay him his expences, as a fort of recompence.
Replied for Torrence. Where the statutory part of an act, specially a new and correctory one, is clear, casus omissus habetur pro omisso, and the act is not to be extended to cases not expressed, by virtue of arguments drawn from the narrative, and imaginary view or reason of it. For is it not rational to suppose, that the legislators were not so liable as we to mistake the reason and view of the law? It was just upon this ground, that the Lords of Session refused to extend against adjudgers, the act of Parliament, ordaining a year's rent to be paid to the superior by comprisers, till a new law was made for it; albeit the thing was equally reasonable in both cases: In regard the act 6, Parl. 23. James VI., anent comprisings, allowed the composition of a year's duty to the superior; and the subsequent act, concerning adjudications, made no mention of it. 2do, As to the exception of ground annuals, infeftments of annualrent, and other debita fundi, the brocard, Exceptio firmat regulam in casibus non exceptis, holds good; but Pardovan misapplies it. For here the rule is only concerning apprisings, whereupon infeftment needed to follow, for denuding the debtor; and the exception of debita fundi, does indeed confirm that rule, as to all other apprisings, that behoved to be completed by infeftment. But Torrence's adjudication is a complete diligence, with-out necessity of either infeftment or charge against the superior; and so is not to be considered as the first effectual adjudger in the sense of the act of Parliament, to the effect of others coming in pari passu with him, but must carry the whole subject adjudged, and the other adjudgers have only right to the reversion of his adjudication, and to redeem upon payment.
The Lords found, That the clause of the act 62, Parliament 1661, being general, comprehending all apprisers and adjudgers within year and day, Pardovan and Torrence should come in pari passu*. (See Arrestment.)
Fol. Dic. v. 1. p. 10. Forbes, p. 12.
* This case is also reported by President Dalrymple, and by Lord Fountainhall.—The report by the one will be found under Competition: By the other, under Arrestment.
