Subject_1 ADJUDICATION and APPRISING. Subject_2 APPRISERS and ADJUDGERS may be restricted, in their Possession, to their neat Annualrents. Subject_3 *** The act 62, Charles II. 1661, (p. 271. duodecimo), contains this clause:
“And, in case the lands, and others, comprised, exceed, in yearly rent and value, the annualrent of the sums contained in the saids comprisings, and of the expence disbursed in obtaining infeftments thereupon, and the debtor shall desire the creditor to possess the lands and others comprised, it shall be lawful to the Lords of Session, likeas the saids Lords are hereby empowered and authorised, upon a supplication to be made to them by the debtor, and citation of the comprisers, to appoint the apprisers to possess such of the saids lands and others, during the legal reversion, as the saids Lords of Session shall think just and reasonable: The saids debtors always giving possession to those who have right to the saids comprisings ; and ratifying their possession already apprehended by them (if any such possessions they have) of such of the saids lands and others, as the saids Lords of the Session shall appoint, not being beneath in yearly rent and value of the annualrents above-mentioned ; or otherwise giving to the creditors (whether they have possession or not) sufficient security, at the sight of the saids Lords, for payment of the saids annualrents, during the time foresaid; the saids Lords of Session having always power to determine, whether, in the cases foresaids, the debtor shall give surety to the creditor, for his annualrents ; or, the debtor not being able to give surety, the creditor shall be obliged to take possession of the debtor's lands. And if the Lords of Session shall appoint, in the case foresaid, the creditor to be possessed for his annualrent; then, and in that case, the debtor shall be holden to deliver the evidents of the saids lands to the creditor, or transumpts thereof; providing always, that the creditor's right, by virtue of the saids comprisings, be noways prejudged after the expiring of the same: And that the whole lands and others, both such as shall be possessed by the debtor, and remanent of the lands and others contained in the saids comprisings, shall pertain to the creditor irredeemably.”
Lady Kirkhouse v. her Husband and Son, and their Creditors
1728.
November Case No. No 3.
Possession restricted, to give room to a claim of aliment.
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Cassie, elder of Kirkhouse, in the year 1715, was attainted of high treason, and his estate found to belong to his son; upon this medium, that, it being a tailzied subject, the father had incurred irritancies, and fallen from his right, before his rebellion.—Lady Kirkhouse, spouse to Kirkhouse elder, in her contract of marriage, was provided to the liferent of 1000 merks, to take place after her husband's decease; but, after the fee was established in her son, having insisted against her husband for a separate aliment, upon the head of mal-treatment, she not only obtained her son to be made liable for a separate aliment, but likewise, upon the act 1661, obtained that the adjudgers upon the estate should be obliged to restrict themselves, to their annualrents during the legal, that there might be room for her to affect the rents of the estate for that aliment. (See Tailzie—Aliment.)
