Subject_1 ADJUDICATION and APPRISING. Subject_2 Of the DEBT which is the FOUNDATION of the DILIGENCE.
Creditors of Alison of Dunjop, v. Agnes and Margaret Auchinlecks
Date: 13 January 1759 Case No. No 29.
No nullity in an adjudication, that the accumulate sum had been left blank in the decree.
Restricted, because credit had not been given, for rents received by the adjudger, before the date of the decree.
How far payments to the relict, and the apparent heir, ought to be sustained?
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It was objected by the competing creditors of Dunjop, against an adjudication produced for Agnes and Margaret Auchinlecks, which had been led by Robert Auchinleck, their grandfather, That the accumulate sum was blank in the decreet of adjudication.
‘The Lords, upon advising petition and answers, found, That the accumulate sum not being filled up, is no nullity in the adjudication.’
It was further objected, That allowance had not been given for certain rents possessed by Robert, the adjudger, before the date of the adjudication: And the fact been clearly proved,
‘The Lords found, That the adjudication can only subsist as, a security for the principal sum, annualrents, and necessary expences, accumulated at the date of the adjudication, and the interest thereafter.’
Robert, the adjudger, continued in possession of the rents after the adjudication, till his death in the year 1718. John, his son, then entered to the possession of two-thirds, and Robert's widow of one-third, during her life; and, after John's death, his widow continued in possession of the lands, and kept her two daughters, Agnes and Margaret, in family with her. Thereafter Agnes, one of the daughters, married Samuel Auchinleck; and he entered to the possession, first of a part of the lands, and soon after of the whole, and continued in possession till Whitsunday 1755.
The competing creditors insisted against Agnes and Margaret, who now claimed upon the adjudication, That the several possessions of John the apparent heir, of Robert the father's widow, and of John's widow, and of John's daughters, before they made up titles to the adjudication, must all be imputed in extinction of the sums contained in the adjudication.
Answered: John had no right to the adjudication during his apparency; much less had his widow, or the widow of his father, any pretence of right; and his daughters never possessed but under his widow, from whom they obtained the possession.
Replied: John, as apparent heir, had an undoubted right to the annualrents of the adjudication; and therefore the rents received by him must be imputed in extinction of these; and, as the competitors cannot make up a title to the adjudication, without passing by John, who was above three years in possession, they must be answerable for the whole of his intromissions.
As to Robert's widow, her right stood thus: Robert's adjudication, proceeded in part upon an heritable bond, upon which he stood infeft; and his widow was by law entitled to a terce of the annualrent of that bond; and therefore her intromission must, to that extent, impute in payment of the adjudication. 2do, If she was entitled to any further liferent-provision from her husband, her possession must impute to the extent of her full provision; because the heirs of her husband, now claiming upon the adjudication, have no interest to object to the imputation of a sum, which she uplifted out of the only fund she had access to, for her payment of a debt, which they and their father John were bound to make good to her, as representing Robert. 3tio, Agnes and Margaret had intromitted with their grand-mother's effects; and therefore cannot dispute allowance of the intromissions she had with the rents of this subject.
As to John's widow, though she was not entitled to a terce, yet any liferent-provision, made to her by her husband, would be sufficient to make her intromissions impute; because John's daughters, who represent him, by passing by him, and serving to their grand-father, cannot object to her having recovered her alimentary provision, by continuing to possess the lands which her husband had possessed. Nay, supposing no liferent-provision, she was entitled to an aliment from Agnes and Margaret, both as being her children, and as representing their father; and if her intromission were not to impute, the burden of her aliment would be thrown upon the other creditors. But further, as her two daughters lived in family with her, the greatest part of the rents must have been applied to their aliment and education: And though they were then minors, and their titles not made up; yet their possession, as apparent heirs, must have the effect, to extinguish the debt, at least to the extent of the annualrents of the adjudication; and the mother must be considered as having acted as pro-tutor for them.
From the time Samuel Auchinleck entered to the possession, there can be no doubt, that the rents must be imputed in extinction of the adjudication. If he had even paid the rent to his mother-in-law, the widow of John, it would not alter the case, as his wife had the right to these rents in preference to her mother; and therefore he could not plead upon such undue payment.
‘The Lords found the rents, during the life of Robert Auchinleck, impute; also those during the life of John; also the intromissions of the widow of Robert, to the extent of the third of the annualrent-right, of which she had a terce: But found, That the intromissions of the widow of John do not apply.’ (See Extinction of Apprising and Adjudication.)
For the Creditors, Ferguson.
Fol. Dic. v. 3. p. 4. Fac. Col. No 159. p. 282.
