Subject_1 ADJUDICATION and APPRISING. Subject_2 RANKING of ADJUDGERS and APPRISERS.
Henry Pierce, and his Attorney, v. David Limond
Date: 22 June 1791 Case No. No 16.
In what manner an adjudication is made the first effectual one, when the debtor has not been infeft.
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The lands of Brackenhill, held of a subject, were disponed to Hugh Ross: But, although the disposition contained a procuratory of resignation, and a precept of sasine, he never was infeft.
After the death of Hugh Ross, his son Hugh Ross, expede a general service, as heir to his father; thus acquiring right to the unexecuted procuratory and precept respecting these lands. But he also omitted to take infeftment.
The affairs of Hugh Ross, the younger, having gone into disorder, his creditors led adjudications. Among others, David Limond adjudged the lands of Brackenhill, and charged the superior to enter him as vassal. And, after a considerable interval, Henry Pierce led another adjudication; but, in order to make it effectual, he recovered the disposition in favour of Hugh Ross, the elder, and took infeftment, by executing the precept of sasine contained in it.
The lands having been judicially sold, the common agent proposed to rank the creditors on the price, as if David Limond's adjudication had been the first effectual one. But it was objected, for Henry Pierce, That a charge, against the superior of the adjudged lands, where the debtor was not infeft, was inept; and that of course the subsequent adjudication taken by Mr Pierce was to be considered as the leading one. In support of this objection, he
Pleaded: By a decree of apprising, which was the earliest method of attaching landed property, in Scotland, for the debts of the owner, the lands were judicially disponed to the creditor. But, in order to make the transfer complete, according to feudal forms, it farther behoved the creditor to obtain infeftment.
When the debtor had been infeft, the appriser was authorised to apply to the superior of the lands, who, upon receiving a year's rent, as a composition for renewing the investiture, was obliged to give infeftment; the Court of Session being in use to issue letters, charging him to do so, without any farther investigation. If, after being thus required by one creditor, the superior took it upon him to give infeftment to another, this, as a fraudulent act, was altogether disregarded; Hope, Minor Pract. § 275.; Craig, 3. 2. 20. And this is the rule recognised by the statute of 1661, introducing a pari passu preference of such apprisings as are within year and day of the first effectual one, which is declared to be that “which is preferable in respect of the first infeftment, or the first exact diligence for obtaining the same.”
In the case of an apprising deduced against one who had never been infeft, the situation of matters is very different. In such a case, it would have been in vain to apply to the superior, whole vassal the debtor had never been. As a voluntary disponee, in such a case, was obliged to complete his right, by executing the precept of sasine, or by resigning, in virtue of the procuratory, so the appriser was obliged to follow the same course. And, now that adjudications have been substituted in the place of apprisings, it must follow, that, when the debtor has never been feudally vested in the lands, a charge against the superior must be inept, in the same manner as if the superior had proceeded to give charter and infeftment to the adjudger, without being formally required so to do; and so it was solemnly decided, 6th December 1695, Dewar against French, (No 12. h. t.)
Answered: The statute of 1661 declares, in general terms, that a charge against the superior shall be equal to infeftment; wherever, therefore, a charge has been given, the requisites of the statute must be considered as complied with, and the preference of the creditors mull be regulated by it. To enter into farther discussions would only be injurious to creditors, who cannot always know how their debtor's rights stand; and so the rule is laid down by all the authors, no distinction being made whether the debtor was infeft or not. Stair, 2. 3. 29.; 3. 2. 49.; Erskine, 2. 12. 24.
Where the superior pays no regard to the charge at the instance of an adjudger, it would be equally unjust to enquire, whether the debtor had been regularly received as the vassal, as it would be to examine, whether, along with the warrant for charging the superior, the creditor had offered a year's rent, without which, however, a superior is not obliged to give infeftment to an adjudger. The decision, quoted on the other side, appears to have been erroneously abridged in the Dictionary, the question, in the case there noticed, having turned on the effect of a general charge, and of the statute 1693, respecting unexecuted procuratories. At any rate, it is a single decision, in opposition to the general tenor of the best authorities.
The Lords unanimously found, That the adjudication at the instance of Henry Pierce was the first effectual one.
Reporter, Lord swinton.For David Limond, Mat. Ross, et alii.For Henry Pierce, Abercromby, Honyman, et alii.Clerk, Sinclair.
Fol. Dic. v. 3. p. 14. Fac. Col. No 2. Append. p. 9.
