Scottish Court of Session Decisions

Subject_1 ADJUDICATION.

Ramsay
v.
Brownlie

1738, Dec. l.
Case No. No. 20.

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The point in dispute betwixt the parties, mentioned December 7th 1736, was for the first time determined this day, after a very full hearing in presence, when it was found unanimously, that an appriser dying within the legal, the right of apprising, (or adjudication) and whole sums therein contained, descended to his heir, and no part of it to his executor; for we considered it as a right of lands redeemable in a limited time, and not as a security for debt; and indeed the matter would be quite inextricable, were it otherwise, especially after the legal, because by no form hitherto devised, could the executor make a title to the lands; but if an apprising were, according to our late practice, restricted to a security, so as it would never expire, I doubt the case would be different, at least as to subsequent annualrents. 2do, After an apprising is expired, the appriser carries not only the property, but has also action for the bygone fruits during the legal against the tenants and all intromitters that cannot defend themselves by a better title or bona fides. Query, therefore, does not that action for bygone rents go to executors, and should he die within the legal, to whom will that action for bygones go? This does not want difficulty, for should it go to executors, these bygone rents may exceed the whole sums in the apprising, and many inconveniencies, or rather absurdities, might follow. It is strange that these questions have never been decided. Adhered unanimously 1st December.—2d February 1738.