Subject_1 ADJUDICATION and APPRISING. Subject_2 NATURE and EFFECT of this DILIGENCE.
Wades, v. The Heir of Marshal Wade
Date: 11 December 1760 Case No. No 20.
Sums secured by adjudication, carried by a general clause of all debts and sums of money.
Mar. 7. 1753.
July 10. 1753.
Mar. 9. 1754.
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Marshal Wade, upon the 5th of May 1747, executed at London a deed in the Scots form, by which he disponed to George and John Wades, his natural sons, “all and whatsoever debts and sums of money, real or personal, resting or due to him by any person or persons in Scotland, by bond, bill, account, or any other manner of way.” A particular clause was afterwards subjoined, by which he bound his heir and successors, to subscribe and deliver to his said sons equally betwixt them, valid and ample dispositions and assignations of the whole premisses, containing procuratories of resignation, precept of sasine, and all other necessary clauses.
The only subjects which belonged to Marshal Wade in Scotland, at the time of his death, were certain tack-duties due by the York-buildings company, some of them secured by adjudications, in the following manner: Sir Alexander Murray of Stanhope, granted a lease of his mines in Tweeddale and Argyleshire, to the Duke of Norfolk, Marshal Wade, and others, for thirty years, commencing 25th March 1725. These partners granted a sub-tack to the York-buildings, company, for payment of the tack-duty to Sir Alexander Murray, and an additional sum of L. 3600 Sterling yearly. For security of this additional sum, the company did infeft the Duke of Norfolk and his partners in their estates in Scotland, for payment of an annuity of L. 3600 Sterling, equivalent to the tack-duty.
The York buildings company having failed in payment of these tack-duties, the partners used inhibition against them; and in the years 1732, 1736, 1738, and 1746, deduced different adjudications of the company's estates, for payment of the duties that were then due, and for security of what should become due thereafter, during the continuance of the lease.
Marshal Wade's sons brought a process against William Wade, his nephew and heir at law, concluding, That he be decerned to make up titles to these adjudications, and convey them to the pursuers, in terms of the disposition above mentioned. The defence insisted upon for the heir at law was, That the foundation of the claim being a general disposition of all debts and sums of money resting by bond, bill, &c. it could not carry a right to the accumulate sums in these adjudications; in respect an adjudication is to be considered as a legal sale or disposition to the debtor's lands, redeemable upon payment of the debts, and so not comprehended under the general description of debts or sums of money.
Pleaded for the pursuers, The original debt is still due to the creditor, after he has led an adjudication for his security, as well as before. It is still competent, to the creditor, to use personal diligence by horning and caption against the debtor. He may adjudge any other subject belonging to him, poind his moveables, or affect his personal estate by arrestment. This demonstrates, that his debt still subsists, and is not extinguished by the adjudication. A proper wadset is in a very different situation: The money is sunk as the price of the lands, and is no longer a debt, till requisition be used. An adjudication is no voluntary purchase, but a diligence which a creditor is obliged to use for recovering payment of his debt. Though, in some views, it may be considered as a sale against the debtor, so as to deprive him of the right of redemption, if he does not use it in due time; yet, with regard to the creditor, it is never considered in such a view as to extinguish his debt, but only as a right in security, which he may relinquish at pleasure, and betake himself to any other method of recovering his debt that he shall think best.
As an adjudication is considered to be a pignus prætorium with regard to the creditor, it is also considered in the same view with regard to the debtor, when such is his interest. Thus, the adjudger who enters into possession is obliged to account for his intromissions, in the same manner as every other creditor who enters into possession upon a right in security; and if he is paid within the legal, his diligence is declared by the act 1621 to expire ipso facto. If the adjudication was considered as a sale, whether redeemable or irredeemable, it could never be extinguished by intromissions.
In like manner, compensation is pleadable against a debt secured by adjudication; 18th June 1675,* Laird of Leys against Forbes; 12th November 1675,†Home against Home; March 1682,‡ Lord Saline against Callendar; 17th March 1682, Baillie contra Hillside.§ On the other hand, it is equally certain, that compensation cannot be pleaded upon a sum secured by proper wadset, before
* Stair, v. 2. p. 330.
† Stair, v. 2. p. 368.
‡ Sir P. Home, v. 1. No 241.
§ See General List of Names.
requisition; 12th November 1675, Home contra Home.* The reason is, that until requisition, there is no debt; which clearly shows the difference betwixt the nature of a wadset-right and an adjudication.
Answered for the defender, An apprising in the oldest statutes, confirmed by the opinion of lawyers, is uniformly considered to be a legal sale under redemption: And though it may be true, that, notwithstanding the adjudication, the creditor is at liberty to use diligence upon his original ground of debt; and though he may use it as a ground of compensation to that extent; yet that will not change the nature of the diligence, or prove that it is not a proper sale, redeemable upon payment of the debt.
That this was considered as the nature of an apprising, is evident from the following authorities; Leg. Burg. cap. 94. 95.; Stat. Alex. II. 24.; Rob. I. cap. 9.; Ja. III. act 36. This is more particularly and fully explained in the act 1469, with Sir George M'Kenzie's observations upon it. An apprising, therefore, was always looked upon as a legal vendition and alienation of the debtor's lands, under redemption, in the same manner as a contract of wadset. Though several alterations have been introduced by the subsequent statutes, with regard to apprisings and adjudications; yet there are no words in any of these laws, that point out an alteration in the original nature of apprisings. Agreeable to this reasoning, the Court decided, 19th November 1680, Dalgarnock contra Tolquhoun; and 3d February 1738, Elisabeth Ramsay contra the Creditors of Clapperton.†
No regard can be paid to what was pleaded for the pursuers, That an adjudication bears no resemblance to a contract of wadset, where the wadsetter is not considered as a creditor; till after requisition; whereas, an adjudication is not a voluntary purchase, but is considered a right in security, which the creditor may relinquish when he thinks proper. Supposing this to be true, it does not follow, that an adjudication is not a judicial sale, or that the creditor is not considered as proprietor, until the land is redeemed, or he renounces the diligence Besides, neither Marshal Wade, nor the pursuers, have ever shown any inclination to renounce what interest they may have in the several adjudications, or the infeftments following thereupon.
It cannot alter the case, that, by the act 1621, an adjudger, who enters into possession, is obliged to account for his intromissions, like any other creditor in security; and, so soon as he has uplifted enough to pay his debt, that the adjudication expires ipso facto. This equitable regulation, was introduced to preserve an equality betwixt the appriser and the reverser; but, in every other particular, the statute left apprisings upon the same footing a formerly. This was the opinion of the Court in the above-mentioned case, Ramsay against the Creditors of Clapperton.
The defender cannot admit, that compensation is pleadable in the present case. The decisions appealed to by the pursuers, do not seem to be clear, or agreeable
* See General List of Names.
† Ibid.
to the principles of law; Legibus, non exemplis, judicandum. In the case of Saline, Lord Harcarse observes, that this point was not fully considered. In order to found compensation, there must be a debtor and a creditor to make a concourse: But as there is no debtor, unless the lands, for the accumulate sum, and annualrents thereof, these cannot be pleaded as a ground of compensation; nor will they be the foundation of diligence, by poinding or arrestment; nor will the accumulate sum be sustained as a ground for adjudging the debtor's separate estate.
Replied for the pursuers, It cannot be pleaded, that a debt is extinguished by leading an adjudication, where the creditor is neither in possession, nor the legal expired; Stair, p. 400.; act 19. 1672. The law plainly supposes, that all manner of diligence, whether personal or real, is competent to an adjudger who has not attained possession of the lands, without distinction whether the legal be expired or not; and when diligence can be used upon the debt, it is impossible to deny that the debt is still subsisting.
‘The Lords found, That General Wade's disposition libelled on, does carry the debts that were due to him by the York-buildings company, as well those secured by the adjudications, charter, and infeftments, as those that were not.’
Reporter, Shewalton.Act. Ferguson.Alt. Hamilton Gordon.Clerk, Home.
Fol. Dic. v. 3. p. 12. Fac. Col. No 257. p. 474.
