The Sale must comprehend the Debtor's whole Estate.
Sir Harry Monro v. Bayne
Date: 11 January 1749 Case No. No 49.
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It was found, That a sale could not proceed on a summons not containing the debtor's whole lands, though these omitted were lands to which he had only succeeded, but was not entered.
Fol. Dic. v. 4. p. 211. Kilkerran, (Ranking and Sale.) No 6. p. 471.*** D. Falconer reports this case:
Sir Henry Monro of Foulis raised a process of sale of the estate of Kenneth Bain of Tulloch, omitting out of the summons a little piece of ground called Achnaclerach, to which the debtor had right as apparent heir to his brother, but was not infeft in, it having been omitted out of Sir Henry's adjudication, but adjudged by other of the creditors, though when this question was determined, it was not cleared whether any of these adjudications proceeded on special charges, and consequently carried the lands.
Objected, That the sale could not proceed, as not comprehending the whole estate of the common debtor.
Answered, That it was not necessary a judicial sale should comprehend an estate to which an heir was not entered; but the Lords had no regard to this. Then it was pleaded, The pursuers had adjudged and raised a sale of Achnaclerach, which they would bring in and conjoin with this process.
Objected, One sale cannot proceed on two summonses; and the defenders have executed a sale, which they will insist in, of the whole estate.
It was made a question on the Bench, whether this defect in the original summons could be supplied by an additional one to be conjoined; but it was observed, it could only be determined when the supplemental action was brought before the Court; as also, if the defenders should first bring in their sale, it might then be determined, whether the pursuers, who had raised the first action, and were in cursu of supplying the defect thereof, were entitled to claim from them the management of the process; but at present they behoved to determine the cause as it lay before them.
The Lords found that the action could not be proceeded in.
Reporter, Drummore.Act. Lockhart & Brown.Alt. H. Home & J. Grant.Clerk, Justice.
D. Falconer, v. 2. No 39. p. 36.
