Subject_1 ADJUDICATION and APPRISING. Subject_2 FORMALITIES of the DILIGENCE.
Elizabeth Reid, v. John Henry of Auchinloich, and his Son
Date: 18 February 1736 Case No. No 6.
In an adjudication against three heirs-portioners, one of them was not specially charged. The adjudication restricted.
Click here to view a pdf copy of this documet : PDF Copy
The said Henrys, having led an adjudication against the three daughters of the deceased Andrew Reid, as heirs-portioners to him; during the currency of the legal, Elizabeth, the youngest, brought a reduction, after both her sisters died, of the adjudication, upon ground, That the special charge was only executed against her and her eldest sister.
Answered: That, as it was regularly led against two of them, whose proportions of the estate were more than sufficient to answer the defender's debt, it ought to be sustained, as to the accumulations: For, if the decreet had been taken against two of them, without calling the third at all, it would have been a valid security for the debt; and, therefore, the not citing one of them ought not to free the others of what they were liable for.
Replied: The adjudication, against the sister who was not charged, is informal; seeing it was adjudging from a person who had no right: Which objection must affect the whole adjudication, even as to those who are charged; because, the decreet of constitution being against all of them, the adjudication has gone out against the shares of the land belonging to them that were specially charged for payment of the whole debt; whereas, it ought only to have been for their proportion, after deducting the share of the heir not charged: In short, a decreet against two could only proceed for two-thirds of the debt; whereas, this adjudication, being for a third more, is irregular.
The Lords sustained the reason of reduction of the decreet of adjudication, that the same is deduced against three heirs-portioners, and only two of them charged to enter to their predecessor, relevant to restrict the adjudication to a security for the principal sum and annualrents.
