Scottish Court of Session Decisions

Subject_1 ADJUDICATION and APPRISING.
Subject_2 ADJUDICATIONS and APPRISING pass periculo petentis; and all Defences are reserved contra executionem, unless instantly verified.

Kinloch
v.
Blair and Strachan

Date: 30 November 1675
Case No. No 8.

In an adjudication, the debtor not appearing, the Lords decerned, reserving all objections; although the superior appeared, and alleged, the vassal had been ab ante denuded.

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David Kinloch of Gourdie having obtained decreet against James Strachan, as representing his father, for payment of several debts of his father's; pursues now an adjudication against the said James Strachan, and Mr James Blair his superior. It was alleged for Mr James Blair, absolvitor, because the said James Strachan is denuded by a resignation of the lands, in favours of Mr George Blair his superior ad perpetuam remanentiam. The pursuer answered, Non relevat against the adjudication, which has always been granted periculo petentis, and the pursuer cannot be obliged to dispute his debtor's right till he obtain adjudication, and thereupon recover the evidents. 2do, The pursuer has raised reduction of Mr George Blair's right, as being after his diligence, and betwixt conjunct persons, without an onerous cause. It was replied for the defender, That albeit the Lords were accustomed, in the case of old adjudications, upon the renunciations of heirs, to grant adjudications to creditors, of all rights they libelled periculo petentium, because the heir having renounced could not compear; but this adjudication is not upon a renunciation, but is upon the late act of Parliament in place of apprising. And albeit messengers, who were judges in apprisings by commission, could not discuss defences; yet now the Lords themselves being the only judges in these new adjudications, may and should discuss the lawful defences of parties interested, especially when it makes no delay, whereby the pursuer might be postponed to the diligence of other creditors, as in this case, where there are no other creditors competing. It was duplied for the pursuer, That he is not insisting upon a special adjudication of a parcel of land effeiring to his debts, but in a general adjudication, in respect the heir compears not, and produces his rights, and consents to adjudge a parcel; and therefore, this general adjudication is in the same case as the old adjudications were. It was triplied for the defender, That, compearing and producing his right, denuding the common debtor, and consenting to discuss the pursuer's reduction summarily by reply, when there is no competition of other creditors, he should be heard; otherwise all purchasers may be troubled by such adjudications and infeftments taken in their estates, to their discredit and prejudice.

The Lords adjudged, seeing it was but a general adjudication, requiring no probation; but, before extract, ordained the reduction to be discussed, seeing there was no competion, or any necessity of the common author's rights to be produced.

Fol. Dic. v. 1. p. 12. Stair, v. 2. p. 372. *** This case is thus reported by Dirleton:

Mr George Blair being called in an adjudication, at the instance of Kinloch of Gourdie, as superior of the lands craved to be adjudged; did allege that they could not be adjudged, because they did belong to him by a disposition and resignation thereupon ad remanentiam. It was answered, That adjudications are now in place of comprisings; and, as such debates were not competent against comprisings, the time of the deducting of the same; so they ought not to be admitted against adjudications; seeing comprisers and adjudgers do adjudge or comprise upon their own hazard: And if the debtor has any right or interest, it ought to be adjudged; and if he has none, there is no prejudice to any person.

The Lords found, That there being no competition of creditors, and no hazard of retarding the pursuer's diligence upon that account; the defender being called, might propone the said defence; and ought not to be put to trouble and charges to appear in any other process, for mails and duties, or removing; especially seeing he was content, that if the pursuer had a reduction, as he pretended, of his right, that it should be discussed presently; and, though he had no reduction, that what he could say against his right, should be heard and discussed by way of reply.

Reporter, Forret. Dirleton, No 305. p. 151.