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Scottish Court of Session Decisions >>
M'Dowgal v Laird Gentorchy. [1663] Mor 51 (24 June 1663)
URL: http://www.bailii.org/scot/cases/ScotCS/1663/Mor0100051-001.html Cite as:
[1663] Mor 51
Subject_1 ADJUDICATION and APPRISING. Subject_2 ADJUDICATION in IMPLEMENT.
M'Dowgal v. Laird Gentorchy
Date: 24 June 1663 Case No. No 1.
In an adjudication in implement, the superior is not obliged to receive the adjudger, unless he instruct his author's title.
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M'Neil having disponed certain lands to M'Dowgal, wherein he was heir apparent to his goodsir's brother, obliged himself, to infeft himself as heir therein, and to infeft M'Dowgal; at least, to renounce to be heir, to the effect M'Dowgal might obtain the lands adjudged; whereupon, M'Dowgal having raised a charge to enter heir, M'Neil renounces; and thereupon, M'Dowgal craves the land to be adjudged; and Glentorchy decerned to receive and infeft him.—Glentorchy alleged, That he could not receive him, because he had right to the property himself; unless the pursuer condescend and instruct his authors (in whose place he craves to be entered,) had right.—The pursuer answered, That he needed to instruct no right; nor was he obliged to dispute the superior's right; but craved the ordinary course, to be entered, suo periculo; with reservation of every man's right, and the superior's own right, as is ordinary in apprisings and adjudications.—The defender alleged, That albeit that was sustained in apprisings, where the superior gets a year's rent; and though it might be allowed in ordinary adjudications, proceeding upon a liquid debt, favore creditorum; yet not in such a case as this, where the vassal's apparent heir dispones, and obliges himself to renounce, of purpose to charge his superior.
The Lords found no process, till the pursuer instructed his author's titles; but an infeftment being produced, he was not put to dispute the validity thereof, in this instance. (See Bankton, v. 2. p. 233.)
