Scottish Court of Session Decisions

Subject_1 COMPETITION.
Subject_2 SECT. XV.

Annualrenters; - Adjudgers; - Inhibiters; - Assignees, &c.

Blyth
v.
The Creditors of Dairsay

Date: 10 February 1674
Case No. No 89.

In a competition of apprising, the sums upon which one apprising proceeded, were contracted partly before and partly after inhibition. It was argued, that the sums anterior were satisfied by intromission within the legal. - Found that intromission was to be ascribed to the first apprising, which alone carried the property; and this not with regard only to the sums anterior to the inhibition.

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In a competition among the creditors of Sir George Morison of Dairsay, Mr Henry Blyth having right to a sum, whereupon inhibition was used against Sir John Spottiswood of Dairsay, before he disponed the estate to Sir George Morison, did thereupon pursue reduction of two apprisings led against Sir John Spottiswood, whereunto Sir George Morison had taken right for his better security, when he bought the lands, and satisfied them with a part of the price, and obliged himself to make no other use thereof, but for his security. The reason of reduction was, because the sums Whereupon the apprisings proceeded, were contracted after the inhibition. It was answered, That in both the apprisings there were sums anterior to the inhibition, and some posterior. It was replied, That the sums anterior were satisfied by the appriser's intromission within the legal, viz. ‘either within the first seven years, or within the time by which the legals of apprisings not expired anno 1652, were prorogate for three years.’ It was duplied, 1mo, That it was not relevant to allege, that the whole intromission should be ascribed to the sums anteridr to the inhibition, but behoved to be ascribed to the whole sums pro rata; not only as to the sums in one apprising, but both the apprisings being acquired at one time for the buyer's security, the intromission behoved to be ascribed to both; and, albeit there be a prorogation of the legal, giving three years to debtors to redeem; it bears nothing of intromission medio tempore, much less can it extend to intromission had, after the legal was expired, according to the law then standing, and before the act of Parliament prorogating the legal; during which time, the appriser did not possess for satisfaction, but proprio jure suo, and so as bonæ fidei possessor, fecit fructus consumptos suos.

The Lords found that the intromission was to be ascribed to the first apprising, which alone carried the right of property, and not to the sums only anterior to the inhibition: So that the whole apprising behoved to be satisfied within the legal; and if it were so satisfied, the property did accresce to the second apprising, in which there were some sums prior, and some posterior to to the inhibition; to all which pro rata the posterior intromission was to be ascribed; but, if the saids apprisings were not found satisfied within their legals, the Lords reserved to their consideration, whether the apprisings, as founded upon the anterior sums, should carry the right of the whole estate, or only a proportional part of the estate effeiring to the sums anterior to the inhibition, and that the inhibition should reach the rest of the estate, as reducing the sums posterior; but the Lords found, that the intromission at any time before the end of the three years of the prorogation, was to be imputed in satisfaction. See Inhibition.

Stair, v. 2. p. 263.