Subject_1 ADJUDICATION and APPRISING. Subject_2 RANKING of ADJUDGERS and APPRISERS.
William King of Newmill v. Innes of Dunkinty
Date: 17 November 1741 Case No. No 37.
The first charge on an adjudication, renders it the first effectual one, though the adjudger do not offer the superior a charter and a year's rent.
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Innes of Dunkinty being creditor to Stewart of Castlehill, obtained decreet of adjudication of his lands, upon the 14th June 1716, and on the 26th of December thereafter, he charged the superior with horning. William King being likewise a creditor of Castlehill's, obtained decreet of adjudication of his lands upon the 1st January 1718, and having applied to the superior, and paid the usual composition, he obtained a charter of the said lands of Castlehill, anno 1721, and was thereon infeft the 4th December that same year. In the ranking of the creditors, it was insisted for Dunkinty, that the charge on his adjudication made it the preferable one, and that King's should be postponed to his, as being without year and day thereof.
For William King it was urged, that the only rule for determining this question, was the act 1661, which establishes a pari passu preference of all comprisings which come within year and day of the first effectual one; and it further declares what shall be held to be the first effectual comprising, to wit, either that on which infeftment has followed, or the first exact diligence for obtaining the same. Now, the lowest degree of diligence which can come under this description, is such a requisition of the superior, as he is bound in duty to comply with, and as will put him in mora, if he refuse to comply; less than this can hardly be thought a sufficient intimation to the superior, far less come under the description of exact diligence for obtaining infeftment, which is required to entitle a compriser to a preference to all other comprisings, as the first effectual one. In this case, Dunkinty did not offer a charter and a year's rent, whereby the suprior was no more bound to enter him, than if no charge at all had been given; and so it was decided, 6th February 1669, Black;* consequently, King's adjudication, on which charter and sasine followed, is the first effectual one, and must be the title for connecting the real right of the lands in all time coming. And as the creditors cannot avoid taking the benefit of his infeftment, they ought to be found liable to him for the expence, by which that title was made up.
Answered for Dunkinty, That he could not discover upon what reason or authority the interpretation now insisted for is founded; the law has required exact diligence, but it has no where mentioned or supposed ultimate diligence by denunciation or caption; horning alone has been thought sufficient to interpel the superior, so as thereby to debar him, by any voluntary act, from prefering a posterior adjudger, by giving him an infeftment. And this seems agreeable to the reason of the thing, and the nature of the diligence; for an adjudication being a pignus prætorium, the superior, cannot, in that time,† compel the adjudger to enter, because it may be redeemed; and, for the same reason, there can ly no necessity upon an adjudger, to offer a charter or a year's rent along with his charge; besides, uniform practice has established it to be that exact diligence which the law has required, to make that adjudication effectual upon which it is used; and so it has been determined, 31st of January 1632, Ferguson.‡ See Stair, tit. Infeftments of property,§ 30, p. 211.‖ And it is begging the question, to say, King's infeftment is the only title for connecting the real right of the lands in all time coming; for, if it was unduly given, it can have no effect: On the contrary, at whatever time Dunkinty shall obtain his infeftment, it must draw back to the
* Black against French. Stair, v. 1. p. 599. See Infeftment.
† i. e. during the legal.
‡ Ferguson against M'Kenzie. Durie, p. 616. See Competition.
‖ Page 219. of the Edit. 1759.
date of his charge, which, by itself, is sufficient to make his adjudication effectual; and if this is the rule of preference, no question can remain concerning the expences of King's infeftment or his composition; for though by the statute, the creditors are burdened therewith, yet it is only in respect of the benefit which thence accrues to them; and where no such benefit arises, there is no foundation for the claim.
The Lords found, That Dunkinty having charged the superior upon his adjudication in anno 1716, the same is thereby the first effectual adjudication; and therefore, William King of Newmill cannot claim the composition paid by him to the superior, nor expences of his charter and infeftment, anno 1721 in hoc statu, the other creditors having no benefit thereby; reserving to the said William King, action against the other creditors, in so far as they may have benefit from his infeftment against the superior's claim of non-entry, or otherwise, as accords.
Fol. Dic. v. 3. p. 13. C. Home, No 182. p. 303.
***See Infeftment for this case, as reported by Kilkeran, p. 8.
