Subject_1 ADJUDICATION and APPRISING. Subject_2 RANKING of ADJUDGERS and APPRISERS.
Competition Barclay of Towie, with the other Creditors of Crimonmogat
Date: 23 June 1720 Case No. No 32.
Adjudgers within year and day, brought in pari passu after expiry of the legal, as well as before.
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The lands of Crimonmogat, belonging originally to John Hay, were apprised by Peter Meldrum in the 1654, and in the same year by Towie's grandfather; and Peter Meldrum stands infeft on his apprising under the Great Seal. Meldrum the appriser, in the 1675, disponed to Mr William Hay, who was infeft in the 1677, upon Meldrum's resignation. Mr William Hay, or his son, contracted debts, whereupon diligence going on against him, there ensued a ranking and sale of the estate: In which process, compeared Towie, and craved preference upon his grandfather's apprising, which had been long neglected, through the misfortune of successive minorities of his grandfather, mother, and himself; and his ground of preference was, that the creditors their rights depended upon Peter Meldrum's apprising, who was their original author; and that Towie had right to come in pari passu with this apprising, as being within year and day thereof.
The creditors pleaded, That Towie's apprising never being completed by infeftment, claiming only upon the act 1661, the benefit of Meldrum's apprising and infeftment, cannot now, so long after the expiry of the legal, compete with singular successors, possessing by heritable rights conveyed from the first effectual apprising, whereupon infeftment had followed.
It was alleged for Towie, That the infeftment on Meldrum's apprising, was, by the law, just one, as it had been upon his own; in which case, the competing creditors could not controvert, that he would come in equally with them, notwithstanding of their deriving absolute real rights from Meldrum; who could give none better than he had, since the Lords have found, that the right was not excluded by prescription.
It was answered for the creditors, That the act 1661, was only intended to regulate the competitions of apprisers during the legal; and that the nature of the right, after the legal, or the consequences thereof, was noways altered, but left in statu quo prius: So that whoever is found to have the first infeftment, after expiry of the legal, whether led during the currency, or thereafter, has thereby an absolute title of property, exclusive of all the other adjudications, though led within year and day: Which seems plain from the act 1661 itself, particularly the preamble of the clause, which gives the reasons for the Statutory part: A creditor living at a distance, was prevented by the more timeous diligence of other creditors; so that the preference depended upon mere chance, and not upon the negligence of the other creditors; this is regulated, by preferring pari passu all creditors doing the same diligence within year and day. The preamble further says, “That posterior comprisers had only right to the legal reversion, which does often prove ineffectual to them, not being able to redeem within the legal.” Here the time during the currency of the legal is only in view; the inconveniencies arising to creditors during that time, is the motive of the statutory part, and these are effectually prevented by giving opportunity to the co-appriser, to recover his payment within the legal, or to do such diligence as may prevent the expiring thereof; which, without using orders or declarators, he may do by a simple suspension, or summons of multiplepoinding, where the creditors will be obliged to produce their interests; and this continues the legal, at least prevents one creditor's taking advantage of another upon the expiration.
Replied for Towie, That an infeftment upon an apprising, after expiry of the legal, is no more exclusive of other apprisings, than during the legal. It was never before questioned, but that infeftment quandocunque taken, did accresce to the remanent apprisers within year and day: As, for example, three persons apprise or adjudge, but the last without year and day of the first; if the first shall infeft after expiry of the legal, it will accresce to the second, in exclusion of the third; and yet, if the third should first infeft, though the legal of the first be expired, they will all come in pari passu because, by the act of Parliament, the last is the first effectual: For the law considers not whether the apprising be expired or not, but in general the first effectual apprising; and, if the apprising be not made effectual till after expiry of the legal, still, as to all apprisers and adjudgers within year and day, it is a right to be communicated. And here is the mistake of the creditors; an apprising after expiry of the legal, even without infeftment, turns to be a right of property in a question with the debtor; but, in competition with co-apprisers, they are no more but so many several creditors missi in possessionem, And by the law, the deed of one accresces to the rest; especially as to the matter of their infeftment, which, by the statute, is designed to be a common right: And, if it were otherwise, the inconveniency would be great; for whereas, now adjudgers often rest upon a charge against the superior, or infeftment taken by any of their number, every one for their security, behoved to take charters, during the legal, for themselves; since otherwise they would be cut off by the first infeftment that Should exist after the legal, which would create the utmost expence.
It was urged for the creditors in the second place, That if Towie prevail, it Shall then be unsafe to purchase from any who has right by apprising, or even from persons who have absolute rights; because perchance some time or other they might have been founded on comprisings: Now the great design of our lawgivers all along has been, to make onerous purchasers secure in all events; which, in a great measure, must be disappointed, if Towie's apprising be sustained, there being no records to show incumbrances by apprisings.
To which Towie answered, Incommodum non solvit argumentum; no law can be made so perfect to meet every inconveniency: But if this argument obtain, then apprisings hereafter, in the persons of singular successors, shall not be reducible upon nullities, or even upon payment made to the disponer. But the answer is obvious; every one who purchases upon an apprising, has an open intimation made to him, that he is purchasing cum periculo, and particularly with this, that he may have competing apprisings; it is a rare example, that an estate is carried off without more than one: So that the very nature of the right speaks loud to him, without another certification. Besides, our law has afforded public records, whence purchasers may be certified of apprisings; for by the act 1661, allowances are introduced; and before that time, as appears by that statute, apprisings were in use to be fully recorded and registered, which was a full notification.
“The Lords found, That the privilege introduced by the act of Parliament 1661, in favours of adjudgers, before, or within year and day of the first effectual apprising, is competent to the said adjudgers, before, or within year and day, against the singular successors of the first effectual appriser, as well after the expiry of the legal, as within the same.”
Fol. Dic. v. 1. p. 20. Rem. Dec. v. 1. No 19. p. 40.
