Elizabeth Colquhoun, and Sir George Colquhoun, Petitioners
Date: 1 December 1747 Case No. No. 68.
A sale begun by an apparent heir may, after his death, be carried on by the purchaser or next heir.
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By the death of Sir Humphry Colquhoun of Tillihewn, the estate of Tillihewn devolved on the now deceased Sir James Colquhoun, eldest son to Elizabeth the petitioner and the deceased Captain James Colquhoun. And the estate being overburdened with debt, a process of sale was pursued at the instance of the said Sir James, as apparent heir; and the lands being exposed to sale, Elizabeth, his mother, was preferred as highest offerer. Thereafter, the ranking proceeded upon the price; and after divers steps made therein, but before it was concluded, Sir James the pursuer died.
Application was now made by Elizabeth, who, beside being purchaser and sole debtor in the price, was also a creditor adjudger, and Sir George Colquhoun, the now apparent heir, that the process of ranking might be allowed to proceed in the name of one or other of them.
The doubt was, that before the act of sederunt 1711, the pursuer of a sale on the act 1681, dying before the conclusion of the process, the process of ranking and sale fell, till a title was made up by the heir; and the provision made by that act, that in the event of the pursuer's death, the process may be taken up by any other real creditor, concerns only sales pursued on the statute 1681.
But the Lords were of opinion, That this process might be carried on upon the footing of common law, either by the purchaser, who has an interest to have the price taken off her hand, or by the now apparent heir, who is entitled to the balance, if any be, without any service to the last apparent heir, the original pursuer, in whom there was nothing to be carried by a service; and, therefore “Found,” in general, “the petitioners entitled to carry on the process.”
Kilkerran, No. 5. p. 580.*** This case is reported by D. Falconer:
Sir James Colquhoun, apparent heir of Sir Humphry Colquhoun of Tillihewn, pursued a process of sale of his predecessor's estate which was purchased by Elizabeth Colquhoun, the pursuer's mother, a real creditor thereon.
Sir James died before finishing the ranking; whereupon, his brother, Sir George, the succeeding apparent heir, and Elizabeth, the creditor and purchaser, presented a petition, craving, that as the action had proceeded so far, it might be carried on to a conclusion, at the instance of one or other of them.
The Lords found, That the petitioners had right to carry on the process of ranking.
Pet. Macdouall.Clerk, Forbes.
D. Falconer, v. 1. No. 213. p. 294.
