If a trustee of an adjudication recover payment out of a collateral security for the same debt, though he has not been assigned to it, this will impute in extinction of the adjudication.
A disponee to an adjudication having recovered part of his debtor's effects, in virtue of his wife being executor to him, found obliged to impute them in payment.
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William Crichton of Crawfurtown left several children, amongst whom were John his eldest son, and Anna a daughter, married to John Bell of Crowdieknows; and having died in bad circumstances, several adjudications were led against his son, which, upon his death also, were purchased in by Crowdieknows, and an adjudication led by him besides for his Lady's portion. This process was against herself, as having then become apparent heir to her father.
Crowdieknows's affairs having also gone wrong, his estate was adjudged, and as part of it, the estate of Crawfurdtown; and the whole being, after his death, brought to a judicial sale, compearance was therein made by William Veitch, writer to the signet, adjudger in trust from his Lady, the apparent heir of Crawfurdton, and several objections made to his adjudications thereon.
Objected to an adjudication led by the Duke of Queensberry, and transferred to Crowdieknows; That Coupland of Collieston being debtor to Crawfurdtown in 2000 merks, he assigned it to Douglas of Fingland, for the behoof of the Duke of Queensberry, in part of a greater sum due by him to the Duke, which sum, with an adjudication thereon, was by his Grace made over to Crowdieknows, and Collieston's bond delivered up to him without any transference thereof; but of which he had since received payment; and by this means had got payment pro tanto of the adjudication.
Answered; The receiving this money did operate no extinction; for, 1st, there could be none in the person of the Duke, as the bond was never in him, but stood vested in his factor, though as an additional security for his behoof;
2dly, In Crowdieknows there was none; for, by receiving the money, he became debtor to the executry, as he was creditor to the hæreditas jacens;
3dly, Supposing his lady both heir and executor to her father, neither of which she then was, as she had not made up titles, and had a sister; yet compensation does not operate till it be proponed, and the pursuers of the sale are singular successors, adjudgers from Crowdieknows of the adjudications standing in his person.
Replied, The bond was assigned to the Duke's factor in part payment of the debt due to his constituent, and was never in Crawfordtown's executry; and so the money being received by the Duke, or by Crowdieknows in his right, must impute as payment, and this may be objected to singular successors.
The Lord Ordinary found, ‘that the debt due by Collieston ought to impute pro tanto, to extinguish the Duke of Queensberry's adjudication;’ and the Lords, on bill and answers, adhered.
1745. July 26.—In the cause between these parties, is was objected to the adjudications led, and purchased in by Crowdieknows, That there having been a bond of 2000 merks granted by Robert Maclellan of Barclay, and Samuel Maclellan his brother, to John Crichton of Crawfurdtown, this was confirmed by Crowdieknows, in name of his wife, as nearest of kin to her brother, and he had thereupon assigned it to a person who recovered payment thereof; and, therefore, he having intromitted with this sum belonging to his debtor, while the adjudications stood in his person, it behoved to impute in payment of them, at least he thereby became debtor in the sum received, as he was creditor in the sum adjudged for, and this introduced a compensation.
Answered; That there could be no compensation betwixt an adjudication and a personal claim; and, besides, there was no concursus crediti et debiti between the same persons, as the bond belonged to his lady, who, not making up titles to the estate, was never debtor in the sum adjudged for.
The Lord Ordinary found, ‘That the debt due to John Crichton by the Maclellans was not to be imputed towards the extinction of the adjudications, reserving to the Lady to recover that debt as accorded.
At advising a bill and answers, it occurred to some of the Lords, that it might make a difference, whether his adjudication for his Lady's portion, led against herself as apparent heir to her father, proceeded on a renunciation or a decreet on the passive titles, for in that case she was debtor; but others thought if the decreet had passed without a renunciation, this could not have been made use of against her to subject her to the debt, because her husband ought to have taken care that she should have renounced; and therefore it could not be urged in her favours.
The Lords, 7th June, adhered.
Pleaded in a reclaiming bill; That Alexander Ferguson of Isle had, upon debts due to him by Alexander Crichton of Crawfurdtown, led an adjudication against John, his son and apparent heir, which proceeded on a decreet on the passive titles, he having in this case neglected to renounce, which was acquired by Crowdieknows; and the bond recovered by him being originally granted to John Crichton, he had recovered so much of his proper debtor's effects, which behoved to impute as payment.
Upon answers, the Lords, 12th July, found, that the debt due by the Maclellans to John Crichton was imputable in extinction of the debt due to Ferguson of Isle, and this day refused a bill, and adhered.
Alt. W. Grant et Fergusson.Act. A. Macdoual.Clerk, Kilpatrick.
D. Falconer, v. 1. p. 93, & 124.
