Subject_1 ADJUDICATION and APPRISING. Subject_2 REDEMPTION of APPRISINGS and ADJUDICATIONS.
James Campbell v. John Scotland and Alexander Jack
Date: 7 March 1794 Case No. No 6.
A declarator of expiry of the legal is necessary in order to cut off the right of reversion.
Effect of a decree of declarator.
Click here to view a pdf copy of this documet : PDF Copy
George Gib, in 1757, adjudged a tenement of houses for a debt nearly equal to their value. He entered into possession, and soon after sold the subject in different parts. No declarator of expiry of the legal was ever raised.
In 1790, James Campbell, in right of the reverser, brought a reduction against John Scotland and Alexander Jack, who, about ten years before, had acquired right to a part of the subject by adjudication, from the heirs of the purchasers from Gib.
The pursuer stated several objections to the original adjudication, and likewise contended, that the debts on which it proceeded, were extinguished by the intromissions of the defenders and their authors.
The Lord Ordinary took the cause to report; and the Court, before determining the particular objections, ordered a hearing in presence, on the general question, how far, where the adjudication is liable to no objection, and the debt is not extinguished by intromissions within the legal, a decree of declarator is necessary, in order to cut off the debtor's right of reversion.
The pursuer pleaded: The common law of Scotland gave the creditor a right to attach, and to sell irredeemably a part of his debtor's estate, sufficient to extinguish his debt. In this state of the law, as there was no good reason for giving a right of reversion, that privilege, which was introduced by 1469, c. 36. might have been considered as unfavourable. But when, in consequence of a slovenly practice, unauthorised by law, general apprisings were introduced, whereby a valuable estate might be carried away for a small debt, the expiry of the legal became highly penal against the debtor. Prior to the act 1621, c. 6. which indirectly recognised general apprisings, the Court, if any case had occurred, would probably have restricted the right of the creditor to a security, and given the debtor an unlimited right of redemption; and although afterwards they gave effect to the expiry of the legal, they canvassed apprisings so strictly, that in almost every case it was opened up. See the Dictionaries, v. Apprising.
The act 1672, c. 19. which was framed by Lord Stair, was intended to put an end to the hardships attending the former practice; but it failed in its object, by allowing a general adjudication, wherever the debtor refused to assign over a part of his estate, one fifth greater in value than the sum due by him. General adjudications, being equally penal to the debtor, are therefore liable to the same restrictions with general apprisings.
Now, it is a general rule, that penal irritancies, introduced by law, do not take effect without declarator. This holds in the case of the irritancy ob non solutum canonem; and in that for omitting to insert the limitations of an entail, in terms of the act 1685. For the same reason, a declarator of expiry is necessary, and particularly where the adjudger enters into possession, as the debt may have been extinguished by intromissions within the legal. By this measure the debtor is warned of his danger, and, in practice, a state of the adjudger's intromissions are inserted in the libel and decree of expiry, for his information. Accordingly, the mere expiry of the legal has been in no case found sufficient to deprive the debtor of his right of reversion; and, in the following cases, the Court have gone upon the supposition, that a process of declarator was necessary; 5th March 1769 Chalmers against Oliphant; Fac. Col. No 34. p. 58. See Grounds and Warrents. 7th March 1769, Caitcheon against Fleeming*; 3d March 1758, Anderson against Nasmyth, Fac. Col. No 105, p. 186. See Prescription, (Negative.)
Besides, the only plausible reason for allowing an expiry of the legal to take place at all, was, that the creditor might be indemnified for being obliged to take land instead of money. This inconveniency, however, was removed by the acts 1681, c. 17. and 1690, c. 20, which allowed any one creditor of a bankrupt, either before or after the legal was expired, to bring the lauds to judicial sale. Indeed, it may be doubted whether these statutes did not operate as a virtual repeal of the former ones relating to the expiry of the legal, the admission of the competency of a judicial sale after that period, shewing, that adjudgers are considered even then not as proprietors, but as creditors.
Answered: It appears, not only from all the statutes relating to adjudications, (1469, c. 36.; 1661, c. 62,; 1672, c. 19.), but also from those respecting other matters, that the mere lapse of the legal, without any declaratory process, was intended to make the subject adjudged, the absolute property of the adjudger. It was upon this account, that the act 1681, c. 21. gives adjudgers, after the expiry of the legal, a right to vote at elections; although it was intended that persons vested with an absolute right of property, should alone have that privilege. For the same reason, when by 1690, c. 10. annuities arising from debts, real or personal, were subjected to certain assessments, creditors, possessing upon adjudications,
* The particulars of this case, which has not been collected, are these:—In 1708, two heritable bonds were granted to Edward Baillie, over a subject in the Cowgate of Edinburgh, the property of Alexander Hunter.—Baillie entered into possession. After Baillie's death, one of his creditors, in 1728, led an adjudication for payment of a debt of L. 4512 Scots. Patrick Tod acquired right to this adjudication, and obtained a charter. He was infeft in 1751. In 1753, he sold it to Fleming.
Caitchen, the heir of Alexander Hunter, the original proprietor, made up titles, by charter and infeftment, from the Magistrates of Edinburgh, and brought an action against Tod and Fleming, of reduction of the titles in their persons, and of count and reckoning for the intromissions of themselves and their authors, with the rents of the subjects. It appeared in the action, that the heritable debts had been extinguished by intromission in 1741; but the defenders pleaded expiry of the legal.
This plea was repelled; and Lord Kennet, Ordinary, found them liable for the whole rents posterior to 1741. Upon a representation, he limited their accounting to the rents, from that time, actually received.—His judgment was affirmed by the Court.
whereof the legal was expired, are exempted. It is upon this principle also, that the creditor is not obliged to account for his intromissions after the legal; 1621, c. 6.; Bankt. b. 3. tit. 2. § 4. para. 65. 73.; Principles of Equity, vol. 1. p. 381. Indeed, the summons of declarator itself, according to common style, states, that the lands have, ever since the expiry of the legal, belonged to the pursuer. This process is not so much as mentioned, either by Stair or M'Kenzie; and that it is not necessary was found; Fount. 22d February 1704, Livingston against Goodler, p. 73. v. 1. of this Dictionary; July 1783, Gordon of Carnfield.* See also, Ersk. b. 2. tit. 12. §§ 22. 26.; Bank. b. 3. tit. 2. § 4. para. 49.; Stair, 18th June 1675, Laird of Leys against Forbes, p. 286, v. 1. of this Dictionary.
The act 1681, c. 17. does not apply to this case. Its object was to force the debtor to give up his land; and it leaves all questions with co-creditors to be settled in the ranking; or perhaps it may have meant to take away the right of adjudgers, in case of the insolvency of the debtor.
The Court considered separately the necessity of a decree of declarator, and its effects. On the first point it was
Observed: The acts 1681 and 1690 do not affect the present question. Formerly the estate of a bankrupt was divided among his creditors and they had no way of getting payment of their debts in money. The sole object of these statutes was to remedy this defect, and not otherwise to regulate the interests of debtor and creditor.
It seems to have been the idea of the Legislature, when the acts 1661 and 1672 were passed, that an expired legal should operate ipso jure. But for a long time back, the rigour of the law has, in this respect, been mitigated; and even the principle of the act of sederunt, 27th November 1592, with regard to conventional irritancies, has not been strictly adhered to. A more equitable practice has now succeeded, by which parties are allowed to take as little advantage of one another as possible; and a reasonable time has in general been indulged, for doing away the effect of penal irritancies. The general adjudication now in use, is evidently not a sale under reversion; but a mere pignus prœtorium; and to convert it into an absolute right of property, by the mere lapse of ten years, would be a strong and very unjust operation of the law, and not agreeable to its analogy or spirit in other instances. The creditor is not obliged, at the expiry of the term, to take the estate, in solutum of his debt; and as little ought the debtor to be foreclosed without some further judicial act, if the estate be large, in proportion to the debt. In the case of Gordon of Cairnfield, the Court went upon specialties; and it may be doubted whether it was a good decision.
As to the effect of a decree, when obtained, the Court were agreed, that where appearance was seriously made for the debtor, all objections would be discussed;
* Not collected
and that, if they were not sustained, and the irritancy not removed, the lands, in consequence of the decree, would become the absolute property of the creditor: But it was thought more difficult to determine what should be the effect of a decree of declarator in absence. On the one hand, it was observed by some of the Judges, that though the debtor might be restored against such a decree, upon shewing objections to the adjudication, or upon proving that the debt had been extinguished within the legal, the mere inequality between the extent of the debt and the value of the lands adjudged, ought to be no ground for setting it aside. Other Judges thought, that the effect of such a decree would depend upon the whole circumstances of the case; and that the value of the lands, compared with the extent of the debt, must be taken into the account; and that it would be necessary, in every case, to inquire what time had elapsed since the expiry of the legal; whether improvements had been made upon the faith of the right being absolute; or whether matters were still entire; and in general, that it would be incumbent upon the reverser to show good cause why he should still be restored against the decree of declarator, which he could not be, without making full satisfaction to the other party.
The Lords almost unanimously found, “That the expiry of the legal does not vest the estate in the adjudger ipso jure.”
Lord Reporter, Dreghorn.Act. Solicitor-General Blair, Geo. Fergusson, John Buchan Hepburn.Alt. Dean of Faculty Erskine, Cullen, Tait.Clerk, Sir James Colquhoun.
Fol. Dic. v. 3. p. 18. Fac. Col. No 112. p. 246.
