Subject_1 ADJUDICATION and APPRISING. Subject_2 ADJUDICATION Upon The ACT 1672. Subject_3 *** The import of the act is as follows: - Considering how much comprisings have departed from the original design of the legislature, which never meant that great estates should be carried away for inconsiderable debts; nor that messengers, or ignorant persons, should judge in matters of so great importance: And, considering the great prejudice to trade and commerce, proceeding from the length of the legal reversion, during which, the creditor cannot command his money, and both debtor and creditor neglect the improvement of the lands; and, that even after the legal is expired, comprisings become the foundation of much fraud; the right thereof being sometimes acquired by the apparent heir of the debtor, who thereby secluded lawful creditors: And as, by the ignorance of notaries and messengers, and in consequence of many unnecessary solemnities, nullities have often happened in the diligences, and at all times they have been most expensive, by means of penalties and sheriff fees: In order to secure equally the interests of debtors and creditors, it is enacted, That in place of apprisings, the Lords of Session shall, at the instance of any creditor against his debtor, principal or cautioner, adjudge and decern to the creditor, in satisfaction of his debt, as constituted, such a portion of the debtor's estate, consisting in lands and other rights, which were in use to be apprised, as shall be worth the sum, principal and interest, then due, and a fifth part more, in compensation of the want of the use of the money, and the necessity of taking land in lieu of it; and these over and above the composition to the superior, and the expences of the infeftment. The adjudication shall be made according to the rates of the lands and other rights in the neighbourhood, and proof shall be taken by the Lords, on the part of the creditor, and likewise of the debtor, (if he shall desire it,) of the yearly rent and value of the lands and rights, and what they have yielded for five years preceding, and what they may pay, and the rates and prices at which such lands and rights are usually sold in the neighbourhood; with power to the Lords to determine what warrandice the debtor shall be liable in to the creditor, of the lands and rights so adjudged. Upon the decreet of adjudication, it shall be lawful for the creditor, immediately to enter to the possession of the lands or other rights, and so intromit with the mails and duties thereof, in satisfaction of his annualrent, during the not redemption; and he shall not be liable to any restriction, or action of count and reckoning. If the lands adjudged be affected with liferents, or any casualty, or if the right adjudged be such as to yield no rent during the legal to be now appointed, this shall be expressed in the decrees, together with that part of the sum effeiring thereto; that in case of redemption, the creditor may have his annualrent for that part of his sum, for which he had no profit; which lands, and other rights adjudged, shall belong heritably and irredeemably to the creditor, if they be not redeemed within the space of five years, after the decreet of adjudication, by payment or consignation of the sums, principal and interest, for which the adjudication proceeded, the composition paid to the superior, and expences, in obtaining infeftment, and interest thereof, in so far as not satisfied by possession, in manner mentioned. The creditor being once in peaceable possession, conform to the decreet of adjudication, it shall not be lawful for him to use any farther execution against his debtor, except in case of eviction upon the warrandice, which the Court shall order. But it shall be lawful for the creditor to use all manner of diligence against his debtor, principal or cautioner, by horning, caption, arrestment, or otherwise, until he enter to the actual possession. Comprisings are prohibited in future, without prejudice of any comprisings led before the date of the act, or to be deduced, of lands or other rights already apprised, of which the legal is not expired, which are to be regulated by the former laws. It is provided and declared, that if the debtor shall abstract the writs and evidents of the lands, and other rights to be adjudged, and shall not produce sufficient rights and deliver them, or transumpts of them, to the creditor, such as the Lords shall judge necessary; and, if he shall not renounce the possession, and ratify the decreet of adjudication, in order that the creditor may enter summarily and without impediment, so that he may have a clear right and quiet possession; then, and in that case, it shall be lawful for the creditor to adjudge all, or any right belonging to his debtor, in the same manner as he might have apprised them, according to the act of Parliament 1661, under the reversion, and with the power competent to other creditors, expressed in the said act. It is provided, that neither the superior, nor the adjudger, shall be prejudged by the new act; but that they shall be in the same case after citation in an adjudication, as if apprising were led of the lands at that time, and a charge given to the superior thereupon. Decreets of adjudication shall be allowed by the Lords of Session, as apprisings used to be; and the allowance shall be registered in the same manner, and under the same certification, with the allowance of comprisings, that it may be known; and that creditors may not be disappointed, by adjudging lands already adjudged to others.
Cha. II. Sect. 19. 6th Sep. 1672. p. 501. duodecimo.
Elizabeth Mirrie v. Hamilton of Murdiston
Date: 15 January 1740 Case No. No 11.
An adjudication upon the act 1672, found to be competent, where there had been no constitution obtained against the defender; which, in a comprising led before that act, would have been necessary.
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Inglis of Murdiston, disponed his estate of Murdiston to Alexander Inglis, alias Hamilton, and certain heirs of tailzie substituted to him, containing reserved powers to burden, &c.; and, soon thereafter, he bequeathed several legacies to his friends; particularly, he granted a bond to James Pollock for 10,000 pounds Scots, payable after his own death; and, at the same time, he disponed his other estate, real and personal, to trustees, to be applied for payment of his debts and legacies. Upon Pollock's decease, his relict, as executrix-creditrix to him, brought a process on the passive titles, for payment of the 10,000 pounds Scots, against Hamilton of Murdiston, the disponee, who had succeeded to the estate of Murdiston, and who likewise had had some intromissions, as one of the trustees; in which it was found, that the estate of Murdiston was affectable for payment of the 10,000 pound bond. Upon this declaratory decreet, without insisting to have Murdiston personally liable, she brought an adjudication against him upon the statute 1672.
The defence pleaded was, That as no apprising could have passed against him before the statute 1672, so neither could the adjudication introduced by it, in place of apprising, go against him; especially, as he was not found personally liable. In support of this, it was observed, That the adjudications introduced by the statute, were introduced in place of apprisings, as was plain from the express terms of the act; and, that it did not supercede the adjudications formerly competent, where there could be no comprising; particularly adjudications ad factum præstandum, in implement of an obligation to dispone; adjudications contra bære-delatem jacentem, &c.; for all such remain as they were before the statute; and that no adjudication, in terms of the statute, is competent in place of those ancient ones, the one introduced by that act, having only come in place of comprisings; therefore, where a comprising was not competent before the statute, neither is an adjudication upon the law now competent. Further, no comprising was competent, without a previous decreet against the party, whose lands were to be comprised, decerning him to pay the debt; neither could there be any comprising, without a previous search for, and poinding of the debtor's moveables, if they could be found; and, in subsidium only, his lands were to be sold by the sheriff, to the highest bidder. And, as no apprising could have gone against the defender for this legacy, for which he has not hitherto been found liable; consequently neither can his lands be apprised, in subsidium, for payment thereof. Besides, when the plan of the statute is considered, it will be apparent, that the regulations therein laid down, can only apply to the case, where there is a decreet against a debtor, for payment of a liquid sum: For, 1mo, The statute supposes a process to be brought at the instance of a creditor against his debtor; now, where there is no debtor, but lands found affetable, it is not within the description of the statute. 2do, When one is not liable to pay, with what justice can he be decerned to dispone, or consent to an adjudication of his lands equal to the debt, and a fifth part more, and to cede the possession of his lands ? This may be just, with respect to a debtor, who is personally bound to pay; but as to one whose lands only are affectable, why should he pay a fifth part more than the sum with which his lands are affectable? Again, where a debtor refuses to give lands in satisfaction, &c. it may be just to allow his whole heritable estate to be adjudged in satisfaction, in terms of the second alternative of the act; but, where one is not personally liable, but a particular right is burdened, where is the justice, that his other estate should be adjudged in payment of that debt ? Besides, Murdiston's heirs of line, and the trust-estate itself, ought to be discussed before his lands of Murdiston can be affected.
Answered: That it seldom happens, where a debt is due, and particular lands affectable, that some one or other is not personally liable to pay; nor can the pursuer admit, that the defender is not personally liable, in valorem of his intromissions, though hitherto the has not obtained judgment in these terms: It cannot, therefore be matter of surprise to find our lawyers, when treating of apprisings, handling the subject as it commonly occurred, where the debtor was personally liable. It was upon this hypothesis, that the law seems to have thought it reasonable, that the personal estate should be first attached and poinded, before there should be access against the lands. But, if the case shall be supposed, even as the law stood when apprisings were to be allowed, that there was a debt to which Murdiston himself was personally liable, though payment could not be demanded before his death, that he had transmitted his estate in such form, as that the disponee or institute should not be personally liable, though the lands themselves should still be affectable for payment; the pursuer can make no doubt, but, even as the law then stood, the lands would have been comprised for payment of this debt, though neither the person, nor moveable estate of the disponee, could be reached. Before the statute 1672, there was originally no form of process known, whereby the property of lands could be reached for payment of a liquid debt, but by an apprising; and, wherever the debt was liquid, apprising was competent, only with the exception, that where the debtor was personally liable, his moveables behoved to be first searched for, and poinded, before the lands could be apprised: And upon this plan it was, that where the debt was illiquid, as where it consisted in obligatione ad factum præstandum, it was necessary, by a proper process, to liquidate that obligation. But, as the law was still defective, so far as no remedy was competent, whereby creditors might recover payment where the debtor was dead, and that the apparent heir did refuse to acknowledge the succession; or where lands had been sold, but the purchaser's right not completed; there the Court did supply that defect by a remedy, till then unknown; whereby, in the one case, they adjudged the bæreditas jacens upon the heir's renunciation; and, in the other, did adjudge the particular lands in implement of the disposition. But, wherever the claim was liquid, or such as might be rendered so, the only remedy was an apprising; and, since the statute, adjudication; without regard whether the proprietor be personally liable or not; and as it is optional to him to give a partial progress or not, the whole lands fall to be adjudged, where such partial right is not consented to; as it is impossible to think, that a case should occur, where particular lands are affectable for payment of a particular debt; and that no form of process should be competent, whereby to make that payment effectual against the lands; and the pursuer knows of no other method but this adjudication. As to the second objection, it was answered, That however this defence may be competent against the effect of the adjudication, when payment comes to be demanded, it is not competent at present to stay decreet of adjudication, as the estate itself is here the debtor; besides, there is no person who can represent Murdiston qua heir of line; the whole estate having been conveyed, partly to the defender quoad the lands of Murdiston, and the remainder by the trust-disposition.
The Lords found, That adjudication upon the act 1672 is not competent in this case; there being no constitution against the defender, upon which a comprising might have been led before the act. But, upon a reclaiming petition and answers, the Lords found, That adjudication upon the act 1672 was competent in this case.
