The creditor, in a bond, secured over a house, adjudges the house, and dispones the annualrent only, without mentioning the adjudication. The adjudication found to accresce.
Click here to view a pdf copy of this documet : PDF Copy
Robert Burrel granted an heritable bond, on a house in the Canongate, to Patrick Kinninmound, taylor there; on which he was infeft; and adjudged the house; and disponed the annualrent to Alison Algier; and she pursued a poinding of the ground. Alexander Alison procured a gift of ultimus hæres to Alison Algier; and obtained a charter of confirmation, of the right of annualrent, and upon the adjudication; and sold the subject to William Wilson, brewer in the Canongate. Robert Burrel, after inhibition on the bond, disponed the house to Alexander Burrel, his son, shoemaker in the Canongate, whereon he was infeft and possessed.——William Wilson pursued Alexander Burrel to remove.
Answered:—The right of annualrent is no title of removing; and the pursuer has not in him the adjudication; the annualrent only having been disponed to Alison Algier, without so much as a general clause of all that had or might follow upon it. The adjudication was for the annualrents bygone, and in time coming; but nothing is disponed except the right of annualrent, carrying only the growing annualrents; so that the adjudication cannot be held to be carried by implication. This is not a way of transferring heritable rights: And though there may be some decisions, whence it would seem, that a debt being transferred, the diligence goes alongst as accessory; these were in questions betwixt the cedent and assignee; and the determination was, that the intention being to convey the diligence, the cedent was still bound to do it; but not that it was virtually conveyed, so as to be a title in the assignee against third parties.
The Lord Ordinary, 5th February, “Found that the adjudication, led by Patrick Kinninmound against Robert Burrel, on the heritable bond by Burrel to him, was carried by the disposition of the sums, in the said heritable bond, by Patrick Kinninmound to Alison Algier; albeit the said adjudication was not therein specially conveyed: And therefore, in respect the pursuer stood infeft in the subjects on the heritable bond and adjudication, sustained the title.”
The Lords refused a bill, and adhered.
For the Pet. Burrell, J. Grant.
Fol. Dic. v. 3. p. 1. D. Falconer, v. 2. p. 248.
