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Scottish Court of Session Decisions >>
M'Kenzie v Ross. [1669] Mor 6792 (14 January 1669)
URL: http://www.bailii.org/scot/cases/ScotCS/1669/Mor1606792-002.html Cite as:
[1669] Mor 6792
Subject_1 INDEFINITE INTROMISSION. Subject_2 SECT. I.
Applicable in duriorem sortem.
M'Kenzie v. Ross
Date: 14 January 1669 Case No. No 2.
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A creditor having in his person two apprisings of the same subject, the one carrying only the reversion of the first, the question being, whether the whole mails and duties must be imputed to the first apprising, so as to extinguish it within the legal, or proportionally to both, whereby both would be kept up? It was argued for the appriser, That indefinite payment is first applicable to the annualrents, before it can be imputed to the stock. It was pleaded on the other hand, That, in dubio solutio est imputanda in duriorem sortem; and if imputation be made to both apprisings, the first apprising will not be satisfied, and the debtor's right will be taken away, which is most unfavourable. 2do, The second apprising was no title for possession, carrying only the right of reversion of the first. The possession was found only to be attributed to the first apprising, and not to the second, until the first should be satisfied.
Fol. Dic. v. 1. p. 459. Stair.
*** This case is No 10. p. 299. voce Adjudication.
*** Gosford reports the same case:
In a declarator at the instance of John Ross of Auchnacleich against Alexander M'Kenzie of Pitglassie, to hear and see it found, that two comprisings, led at M'Kenzie's author's instance, one of them in anno 1644, for the sum of 1200 and odd pounds, and the other in anno 1647, for the sum of L. 5,000, were satisfied, by intromission or sale of lands within the legals; it being controverted, if the manner of counting should be for the annualrents of both the comprisings from the time that the second was deduced, and that the intromission should be only ascribed to the first apprising during the whole seven years of the legal thereof. —The Lords found, that the first comprising being debitum gravius et antiquius, and by virtue whereof the compriser entered to the possession, and the second comprising resolving only in a right of reversion, the debtor might force the compriser to ascribe his possession to the first comprising only, during the running of the legal thereof, notwithstanding it was alleged that there was a difference betwixt two comprisings led by one and the same creditor, and those deduced by several creditors; and that the defender will be prejudged of payment of the annualrents of the second comprising, during the legal of the first.
Gosford, MS. No 82. p. 29.
*** The like was decided 10th February 1674, Blyth against The Creditors of Dairsey, No 90. p. 2873. voce Competition.
