Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION. Collected By JAMES BURNETT, LORD MONBODDO.

Graeme
v.
Seaton

Date: 17 January 1761

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[Kaimes, No. 185.]

A Debtor had only a personal right to a land estate by a disposition, upon which he was infeft, but the sasine was found to give him only a liferent right, so that his right of fee was only personal, and it was the same case as if there had been no infeftment at all.

The first adjudger of this right neither charged the superior nor was infeft; the second adjudger charged the superior, but was not infeft; and the third was infeft by the superior, having got from him a charter upon an adjudication which he led against the common debtor, supposing him to have the feudal right of fee in his person. The question was, Which of these adjudications was the first effectual adjudication?—And the Lords, by a considerable majority, found the last adjudication the first effectual one; the consequence of which was, that they were all brought in pari passu. The Lords proceeded upon this principle,—that no feudal right to lands can be completely vested in any singular successor, whether disponee or adjudger, unless by infeftment, agreeably to the decision in the 1737, in the case of a voluntary disponee; by which decision the Lords altered their former consecutive decisions and returned to the old law established by a decision mentioned in Lord Stair.

This point, too, of the adjudger was so determined in a case mentioned in the Dictionary of Decisions, Vol. I. p. 18, Dewar against French, 1695.

Several of the Lords were of opinion that the charge signified nothing, as the debtor was not infeft; but, as the two last adjudgers were in concert together, the point of their preference was not much debated. This decision was upon a hearing in presence.

5th August 1761. The decision in this case was altered; but, this day, they returned to the first interlocutor by a considerable majority, upon this principle, that as all the adjudications were incomplete, being of a subject that was capable of infeftment and yet not completed by infeftment, or a proper charge, they were all to be brought in pari passu, like so many assignations not intimated, or so many decreets against an executor. But, on the other hand, if the subject adjudged had been a subject incapable, by its nature, of infeftment, such as a bond excluding executors, a reversion, or a tack, then the maxim would hold, qui prior est tempore potior est jure; and the first adjudger would be preferable, so as to exclude the rest, unless they were within year and day of it.