Subject_1 ADJUDICATION and APPRISING. Subject_2 NATURE and EFFECT of this DILIGENCE.
Ramsay of Wyliecleugh v. Brownlee
Date: 1 December 1738 Case No. No 6.
Whether an apprising be a pignus prætorium, or a sale under redemption.
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Found, That an apprising, and whole sums therein contained, without distinction between principal sum and annualrents, accumulate sum and annualrents thereof, or accessories thereto, do belong to the heir, and no part thereof to the executor, notwithstanding the appriser died within the legal.
The question arose upon the allegation of the reverser, That the apprising was extinguished by the possession of the appriser's heir within the legal, which depended upon this, whether the bygone annualrents, at the appriser's death, belonged to his executors, or to his heir? If to his executors, the apprising was extinguished by the heir's possession, within the legal.
It had been a received notion, that the bygone annualrents, at the appriser's death, Fell to his executors; and there were several instances condescended on, of confirmations of such bygones; and so much was the Court of that opinion, that when this question was first stirred, the President, and he only, spoke of it as a doubtful point. But when the matter came to be more maturely considered, the Court came unanimously into the above decision; as great inconveniences must have arisen from a contrary judgment, and occasion been given to many questions, not dreamed of, concerning estates possessed upon apprisings.
So, upon examining the nature of an apprising, it was judged to be a proper sale under redemption, whereby the land which descends to the heir, comes in place of the debt, which no more exists as to either principal or annualrents; whereas, were it a pignus prætorium, or legal disposition in security during the legal, (which had been the common notion,) then the debt, still subsisting till expiry of the legal, the appriser dying within the legal, the bygone annualrents of it would fall to his executors.
Fol. Dic. v. 1. p. 13. Kilkerran, (Adjudication.) No. 3. p. 3.
