Relief among Co-debtors, and whether the Creditor, upon payment, is bound to assign in order to operate relief.
Adamson v. Balmerino
Date: 25 November 1708 Case No. No 15.
Found in conformity with No 3. p. 3346.
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Janet Adamson standing infeft in a ground-annual of L. 80 Scots yearly, to be uplifted out of some tenements lying in Leith, pursued my Lord Balmerino as heritor, and obtained a decreet against him in 1667. He now suspends on these reasons, first, That this annuity at its first constitution was out of two several tenements, at that time belonging to one man; so then it was no odds which of the tenements paid it; but now the same are come into different hands, and therefore the L. 80 should divide according to the value and proportion of the tenements, and my Lord is willing to pay his share.——The Lords found it affected each of them in solidum, but ordained the charger Adamson to assign my Lord to her action for obtaining his proportional relief from the heritor of the other lands. The second reason was, That her ground-annual ought to bear a part of the cess he pays for the said tenement; for though, in the original constitution, which is more than 100 years ago, there was no such provision, that was because there was no cess then imposed, and so was casus incogitatus; but if such burdens had been then in being, it is impossible that heritors would have consented to make such ground annuals absolutely free.— Answered, This ground-annual has been paid past memory, and never any such retention granted on account of cess, which evinces it has been designed for a free annuity; and they might as well plead, that an infeftment of annualrent might suffer deduction for cess, which was never pretended.—Replied, That prescription and immunity, though never so long, can never be obtruded against posterior supervenient acts of Parliament, imposing public burdens; and this ground-annual being relative to no sum on which it is made redeemable, it can be in no better case than an irredeemable right of property, which can plead no exemption from cess.——The Lords, in their reasoning, inclined to think, that such ground-annuals are not diminishable by cess, but did not decide at this time. They seem to be somewhat of the nature of a feu-duty, which payeth no part of the cess, but the property is only burdened with it; and they might as well plead, that ground-annuals should be liable to retention.
Fol. Dic. v. 1. p. 221. Fountainhall, v. 2. p. 465.
