Subject_1 ADJUDICATION and APPRISING. Subject_2 EXTINCTION of APPRISINGS and ADJUDICATIONS.
Walker v. Macpherson and Forrester
1720.
January. Case No. No 14.
An adjudication, through informalities, being reduced to, a security, the intromissions had, medio tempore, are imputed in extinction thereof.
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An adjudication of a tenement, by progress in the persons of Macpherson and Forrester, having been restricted to a security, at the instance of John Walker, merchant in Edinburgh, because more was adjudged for than was due; the pursuer contended, That the adjudication was extinguished by the defenders and their authors intromissions, even those had after the legal reversion of ten years; because the adjudication having been found only a right in security, and the legal still open, it must be extinguishable by intromission, whether the, original creditor intromit, or his singular successor; for such is the nature of rights in security and payment.
The defenders pled, That possession having been attained after the legal was expired, the sructas bona fide precepti et consumpti, while they had reason to believe themselves proprietors unaccountable, could not be imputed to extinguish the principal sums in their adjudication; which, in this case, would be particularly hard, because if they be bound to account, it must be by a rental; and, mean time, possessing tanquam domini, they have neither preserved vouchers nor documents of public burdens, reparations, Wastes, bankrupt tenants, &c. to diminish the same. If, then, the purfuer's plea obtain, no man shall ever possess quietly or securely upon an adjudication; for it will not be said, that the law ties an adjudger to keep accounts of his actual intromissions, dead, waste and poor for ever; and yet no man can be secure, but minorities may interrupt for a long time beyond the course of prescription, during which, an adjudger, or purchaser of an estate from an adjudger, (and many estates in Scotland, have no other foundation,) shall not know whether he is master of an opulent estate, or if he is not worth a shilling in the World.
To which it was answered, That while the pursuer pleads extinction only, and not repetition, he pleads nothing inconsistent with the bona fides of the defenders; which will be plain, by taking a view of the effect of bonæ fidei possession in voluntary rights. Where one purchases a voluntary irredeemable right, and upon the faith of its being an effectual purchase, pays the price; another appearing, and excluding him with a better right, his bona fide possession can have no other effect, but to exclude repetition of what he has uplifted and consumed: His price is lost, unless he can recover it off his author upon the warrandice; and all he can plead, is, to retain what he hath bona fide intromitted with: It is the same when an adjudication is purchased, which is afterwards excluded by preferable diligence. If then this be the only effect of bona fides, when the right acquired is excluded by preferable right: For what reason should it have a further effect, when one has laid out his money upon the purchase of a right that of its own nature is extinguishable, and is by intromission actually extinguished? When it is found extinguished, he is in the same case that the bona fidei possessor is, whose right is excluded by one preferable; he loses his price, and is only saved from repetition of what he has intromitted with and consumed. Hence, it is evident, that the benefit pleaded by the pursuer, of having his debt extinguished by intromission, which arises from the nature of the right, does noways lessen or encroach upon the favour allowed to bona fidei possession: For still the bonæ fidei possessor is in the same state he would be, had he been excluded by another right; and consequently has all the benefit of his bona fides, though his intromissions be imputed in extinction of his adjudication, that bona fides gives in any other case.
It was replied for the defenders, They lay not their defence here simply upon their bona fides but upon the nature of their intromission: When one intromits by virtue of a right in security, which he bona fide considers as a right of property, the intromissions cannot impute in extinction of the right, for these reasons, That it is not the fact of intromitting in any case that extinguishes the right, but the creditor's intromitting in virtue of that right; and as having such a right, his application of the intromissions thereto: Just as in the common case of payment, it is not the debtor's telling over the money that extinguishes the obligation, but the creditor's acceptance in solutum. Thus one having a right in security, which leads him to intromit, if he intromit not as in that right, but as in some other right, or perhaps as doer for another, or as prædo without any right at all; however he may be accountable for his intromissions, they cannot directly impute to the extinction of the right upon which he did not intromit. In this case, indeed, the intromission was had in virtue of that right itself, which is craved to be extinguished by the intromission; but still, since the intromitter took himself to be proprietor, and never considered his right as in security only, and therefore never once dreamed to make the application of his intromisions to the extinction of that right, either animo, or by any other external deed; it may be thought that it comes to the same, as if he had intromitted by any separate right; the bare fact of intromitting, signifying nothing, the animus, the design of the intromission being necessary to be considered, without which there is no application, and consequently no extinction.
