Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, collected by JAMES BURNETT, LORD MONBODDO.

Hunter
v.
Hunter

Date: 20 July 1742

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The case here was, an adjudication was led upon a special charge to enter heir, but the lands were not filled up in the letters of charge: this was found to be a nullity in the adjudication. Then the question came, whether the heir afterwards entering in due course of law, did validate the adjudication? It was argued, for the affirmative, That the right the heir acquired by his entry was a jus superveniens auctori, which accresces to the adjudication or legal disposition, in the same manner as it would do to a voluntary disposition.

2do, The heir entering at any time, must be reputed to have been entered at the time of the death; because, fictione juris, the time of the death is conjoined with the tempus aditionis, and therefore the adjudication must be considered as if he had been entered at the time it was led.

To the first it was answered,—That the maxim, jus superveniens auctori accrescii successors, does not apply to adjudications in their present form; for this reason, that they do not imply warrandice, which is the principle of accretion in our law. Anciently, indeed, when apprising was a sale of a part of the lands effeiring to the debt, the debtor was bound in warrandice, as appears from our ancient law-books and practicks, and, at present, in special adjudications, the judge determines what warrandice the debtor shall give; but it is otherwise in general adjudications where the debtor's whole estate is adjudged for the debt.

N.B. This was Elchies' reasoning.

2do, To the second it was Answered,—That the fiction of the Roman law was never carried so far with us.

The Lords found that the legal of the adjudication was not expired, this being a declarator of expiry of the legal; but they had not occasion to determine whether the adjudication could be sustained as a security. Elchies thought it might; but the President was of another opinion.