Subject_1 ADJUDICATION and APPRISING. Subject_2 What SUBJECTS are carried by APPRISING and ADJUDICATION.
Sarah Carlyle, Relict of William Lyon, younger of Easter Ogle, v. his Creditors
Date: 9 February 1725 Case No. No 15.
Adjudication with a charge against the superior, excludes not the terce.
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William Lyon died invested in fee of an estate about L. 900 Scots of yearly rent; of his creditors only one had an infeftment of annualrent, answering to the principal of L. 1000 Scots: There were adjudications deduced against him, before the marriage with Sarah Carlyle, to the extent of L. 11,900 Scots, whereof some were with charges against the superior during the marriage; the other adjudications, extending to L. 10,700, were without year and day of the former.
Upon these rights, it was for the creditors alleged, That the widow conld pretend no right to a terce, because the husband was, at the time of the marriage, obæratus; and, as he could by no voluntary conveyance or writing, have provided his wife in prejudice of his creditors; neither could he, by his marriage, prejudge them, especially since the wife had brought no tocher.
It was answered, That a wife is not excluded from a terce by her husband's bankruptcy; but in that matter, there is in law a distinction made of the quality of the debts, if secured by infeftment, or not; for personal debts prejudge not the terce: In which all our lawyers agree; see Stair, lib. 2. tit. 6. § 18. “Terces are burdened by all debita fundi, but with no other debts of the defunct, being personal, though they be heritable, and have a provision of infeftment.” And though the husband had been really insolvent at the marriage, it would make no alteration; for, since the law forbids not a person insolvent to marry, the provision of law must take place in favours of his wife.
It was 2do alleged for the creditors, That such of the adjudgers as had charged the superior before the husband's death, must be preferred to the tercer; because an adjudication with a charge is equivalent to an infeftment.
Answered, That a charge by the act 1661, is made equivalent to infeftment, in the competition only of adjudgers one with another; but not with other rights: That though in that special case a charge is made equivalent to infeftment, for reasons specified in the said act, in other cases it is not: For that act has not said, that a charge against the superior constitutes a real right; far from it, an adjudication remaining still a personal right till infeftment. Hence it would be an erroneous consequence, if one should thus argue: A charge of horning against the superior is equivalent to an infeftment; therefore, an apprising with a charge cannot be carried but by a special service. The answer would be plain, That though the law, in competition of apprisings among themselves, has given this effect to a charge against the superior, it has not confounded the nature of our rights; and an apprising with a charge remains still personal, and is carried by a general service.
‘The Lords found, That the widow has right to her terce, or third of the lands wherein her husband died infeft: and preferred her for the said terce, to the hail other creditors adjudgers.’ (See Terce.)
