Subject_1 ADJUDICATION and APPRISING. Subject_2 ADJUDICATION contra hæreditatem jacentem.
Trustees of Mungo Graham'S Creditors v. John Hyslop
Date: 3 August 1753 Case No. No 11.
An adjudication, contra hæreditatem jacentem, may be led before the sheriff, if the lands be within his jurisdiction.
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David Viscount of Stormouth, anno 1662, granted an heritable bond for 4000 merks, to John Carmichael, and the heirs therein named, obliging himself to grant infeftment, “in all and sundry his lands, heritages, and others whatsoever, pertaining to him, Wherever the same lie in this kingdom, for an annualrent of 240 merks yearly, to be uplifted and taken surth of the readieft mails, profits, and duties thereof, at Whitsunday and Martinmas, by equal portions:” And the bond contains a precept of sasine, in the same indefinite terms. This bond, upon which infeftment never was expede, was Veiled, by progress, in Mr Robert Richardson, writer to the fignet; who, having died insolvent, Patrick Chalmers, one of his creditors, having charged the apparent heir to enter, brought a process upon the passive titles, before the sheriff of Edinburgh; and, upon the renunciation of the apparent heir, obtained first a decreet cognitionis causa; and thereafter, October 1701, a decreet of adjudication contra hæreditatem jacentem, in the same court. And, according to the practice of the sheriff-court of Edinburgh, an abbreviate of this adjudication, signed by the judge, was recorded by the clerk to the bills, in the same manner, as is observed with respect to abbreviates of adjudications, pronounced by the Court of Session, pursuant to the regulations 1695 and 1696. Under this adjudication, the trustees for the creditors of Mungo Graham, claimed the debt contained in the foresaid heritable bond, due by the Viscount of Stormonth.
On the other hand, John Pringle, upon a charge to enter, brought a process upon the passive titles, against the apparent heir, before the Court of Session; and, upon a renunciation, obtained a decreet cognitionis caufa and thereafter, a decreet of adjudication contra heereditatem jacentem anno 1703; under which adjudication, John Hislop claimed.
The Viscount of Stormonth brought the parties to debate their interest, by a multiplepoinding; where it was objected by Hislop, against his competitor, 1mo, That the sheriff has no power to pronounce an adjudication cognitionis caufa which is an extraordinary remedy, introduced by the fovereign court, and competent only there, 2do, That the Viscount of Stormonth having no lands within the shire of Edinburgh, the sheriff had no power to adjudge this heritable bond, which has an especial reference to the debtor's lands, more than he could adjudge the lands themselves. It was answered to the first, That a jurisdiction is, depraxi, established in the sheriff of Edinburgh, to pronounce decreets of adjudication cognitionis causa To the second two answers were made: 1mo That the precept of sasine, contained in this heritable bond, is informal and null; because, an order to give infeftment in all the debtor's lands, in general, is not suffcient for giving infeftment of any lands in particular; and therefore, this bond is to be considered in no other light than as a personal bond, like a bond heritable by destination, or a bond secluding executors, 2do Supposing the precept of sasine to be formal, the bond, however, before infeftment, continues to be a personal right; and for that reason, might regularly be adjudged from the apparent heir, renouncing within that jurisdiction where the apparent heir had a forum.
The Lords were all of opinion, That a precept, to give infeftment in lands, described in general to belong to the granter of the precept, is a sufficient warrant to give infeftment in every particular tenement; which, by production of the granter's infeftment, is vouched to come under the general description. They were also of opinion, That the heritable bond in question, being a jus ad rem, granted for no other end than to establish a land security, must be subjected to the same jurisdiction, to which the lands are subjected. And accordingly, the following interloeutor was pronounced:
“The Lords sustain the abjection to the decreet of adjudication, obtained before the sheriff of Edinburgh; viz. That the lands of the debtor, in the heritable bond, lay all out of the sheriff's jurisdiction.”
With regard to the preliminary point, of the power of a sheriff to pronounce an adjudication contra hæreditatem jacentemthe following argument will evince that he has this privilege. A general charge to enter heir, bears, “That where the complainer has sundry actions to intent at his instance, as well before the Lords of Session, as other inferior judges, &c.” Ergo a decreet cognitionis caufa; before the sheriff, upon the heir's renunciation, is valid. And, of consequence, the sheriff must have a power to put such a decreet in execution, in the only manner possible; which is by an adjudication cognitionis caufa Nor is this an extension of the power, which the sheriff has by the common law. By the act 36, Parl. 1469, it appears, that the sheriff, after pronouncing decreet upon the brieve of distress, proceeded, by his own authority, not only to poind the moveables, but also to apprise he land.
With regard to the second point; what fettled my opinion, was the case of a purchaser entering into possession upon a disposition, containing procuratory and precept, without actual infeftment. The lands lie within one county, and the purchaser dies in another county, where he had his domicile. It appears evident, in this case, that the sheriff, within whose jurisdiction the lands lie, is the only inferior judge competent in this case to pronounce a decreet of adjudication cognitionis causa for the disposition, which has no other operation or effect, than merely to be a title to the lands, cannot be considered as a separate and independent subject, to be attached by any fort of execution, but that which affects the land. In general, title-deeds are not a subject for execution. The land is taken in execution, which belongs to the debtor; and the same right is conveyed to the creditor, which the debtor had, complete or incomplete; and with the land, the debtor's title is conveyed, as an accessory, of whatever nature the title be. The point would be more doubtful, in the case of an obligation to grant infeftment without a precept. (See Jurisdiction.—Sasine.)
