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Scottish Court of Session Decisions >>
M'Ghie v Livingston. [1627] Mor 136 (13 March 1627)
URL: http://www.bailii.org/scot/cases/ScotCS/1627/Mor0100136-006.html Cite as:
[1627] Mor 136
Subject_1 ADJUDICATION and APPRISING. Subject_2 What SUBJECTS are carried by APPRISING and ADJUDICATION.
M'Ghie v. Livingston
Date: 13 March 1627 Case No. No 6.
A compiser found to have no right to rents, which fell due prior to his diligence. (See No 8.)
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In an action, at the instance of M'Ghie of Balmaghie against Livingston, for the mails and duties of his lands, conform to his infeftment; a compriser, who had comprised all right and title that the pursuer had to the lands, and who was also infeft therein, compearing and alleging, that he could not have right thereto; but the same pertained to him, by virtue of his comprising; the Lords found, That the pursuer had right to the duties libelled, and not the compriser; because the pursuit was for years preceding the comprising; which they found pertained not to the compriser, albeit he alleged he had comprised all right, which the pursuer had to the lands, which gave him right for all bygone duties owing for the lands to the pursuer, even as effectually, as if the pursuer had made him assignee thereto; for the comprising was a legal assignation; and albeit it might appear, that the bygone duty owing before his comprising, could not be effectually comprised, the same being res mobiles which were affected with arrestments, and not comprisings; yet the defender contended, that they being bruiked and acclaimed by an heritable right to the land, they came under the comprising, which extended to all the pursuer's right which he had to the lands. And also he alleged, That, as by virtue of the comprising of an heritable contract, containing annualrent for a sum of money, the compriser would have right, not only to seek the principal sum, but all the bygone years annualrents, addebted to his debtor, by virtue of that contract, preceding his comprising; so ought it to be in this case, especially where the question is only betwixt him and the debtor, from whom he has comprised; and not betwixt him and any one of his debtor's creditors, who had affected the saids bygone mails with arrestment. The allegeance was repelled, and the compriser found to have no right to the saids years duties, which preceded his comprising.
Act. Herriot.Alt. Cunninghame.Clerk, Scot.
Fol. Dic. v. 1. p. 10. Durie, p. 289.
