Acts of the Heir proceeding from his Connection with the Predecessor.
Elizabeth Ramsay v. The Creditors of Clapperton of Wylliecleugh
Date: 29 January 1745 Case No. No 67.
Whether, although a decree had been pronounced declaratorie, finding a person liable on the passive titles, he could de distressed on a bond?
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Both parties in this question founded on apprisings affecting the lands of Easter-Wylliecleugh, and mutually objected to each others titles, Elizabeth Ramsay the heiress of the family, on an apprising deduced by Hope-pringle of Torsonce, 4th June 1645, which was now in her person, and the Creditors of the deceast Richard Clapperton on one deduced by Alexander Kennier, which came into the person of a predecessor of their debtor.
Objected against Kennier's apprising, that it is destitute of foundation, nothing being produced to support it, but a decreet in absence, without grounds; and there is a certification standing against the bond, on which it is pretended to have proceeded. The decreet cannot support it, wanting support itself, since it was ultra vires in the judge to pronounce decreet where there was no debt; and want of power is an intrinsick nullity that may be proponed at any time; and thus the apprising must fall without aid from the lenght of time, since so long as it stands on the footing of a naked decreet, it can never be supported without its grounds.
Answered, That the foundation of the apprising was the decreet of constitution. An heir pursued on the passive titles (which was the case here) was laible to be distrest only in virtue of the decreet pronounced against him, and his predecessor's bond served only for an instruction of debt: If a decreet were pronounced declaratorie, finding a man liable on the passive titles, he could not be distressed on a bond; and it was doubted, if this bond had been lost in a few years, whether the decreet itself, mentioning the production, would not have been a ground of debt, much more was it now sufficient, after a possession on the apprising of eighty years (which was alleged) and though the parties had been sixty years in process, this was never mentioned till two years ago; the apprising was supported by the negative prescription, which excluded the reduction thereof, notwithstanding that on account of the continued processes, there was no positive prescription; for whatever might be said where a right was kept latent, yet where possession had been had thereon for so long, and the opposing party had not made the objection, the Creditors must be very well founded in their plea of prescription.
Objected, 2dly, The apprising is null, because John Ramsay against whom it is led, is charged to enter heir in special to Ramsay his brother; and this charge is null, both from the uncertainty of the predecessor who is not named, and because the defender's brother had only a personal right to the lands; and therefore he ought to have been served with what is called a general special charge.
Answered, A pursuer's ignorance of the christian name of his debtor's predecessor, can never hurt him; and a charge to enter heir in lands, comprehends a charge to enter to whatever right the defunct had.
Objected, 3dly, The debt on which this apprising proceeds, belonged to one Nicolson, the letters are raised in his name, and upon the narrative of an assignation, decreet of apprising is pronounced in favours of Kennier, which exceeds the powers of a delegated Judge, such as a messenger is, and at any rate the apprising is null, as the assignation is not produced.
Answered, It is too late to object the want of the assignation, as there can be no doubt it once existed; and as a Sheriff can certainly decern in the name of an assignee, when process is raised in the name of the cedent, so may a messenger, who is Sheriff in that part.
Objected to Torsonce's apprising, That part of the sum on which it proceeded, was a bond due to the Earl of Roxburgh, and assigned by his factor, and though factors might uplift, they could not assign.
Answered, This bond was payable to the Earl, his factors and chamberlains, and as factors could discharge, so it was thought they might assign, on receiving the full value, and the presumption was, this factor had accounted fairly with his constituent; besides, it was jus tertii to the Creditors to start this objection, which was only competent to the family of Roxburgh.
It was objected, That this apprising was satisfied within the legal, and it was endeavoured to be inferred from presumptive arguments, that possession had been obtained thereon, at, or shortly after it was led, and had continued so long as to operate an extinction by payment; but as the argument run into a great length, and was scarcely capable of being made intelligible in an abridgement; and besides there was no point of law to be determined, which it might be useful to observe as a decision, it was thought proper to omit it.
The Lords 18th December 1744, repelled the objections hinc inde.
Upon mutual reclaiming bills and answers, the Lords adhered.
Reporter, Lord Strichen.For the Creditors of Clapperton, Lockhart & Hay.For Elizabeth Ramsay, H. Home.Clerk, Forbes.
D. Falconer, v. 1. p. 62.
