Scottish Court of Session Decisions

Subject_1 IMPROBATION.
Subject_2 SECT. I.

To Whom this action competent.

Oswald
v.
Douglas and Deans

Date: 24 June 1681
Case No. No 56.

Improbation sustained, on the title of an adjudication, with a charge to enter, without infeftment, against all having real lights to the lands, to make them produce them.

Click here to view a pdf copy of this documet : PDF Copy

James Oswald having adjudged the lands of Gogar from Alexander Douglas, pursues reduction and improbation of all right thereof against Robert Deans, and others. The defender alleged no process, because the pursuer is not infeft upon his adjudication, and so, having no real right, they are not obliged to produce to him their real rights of the lands in question, albeit he had charged the superior to enter him upon his adjudication, which, as a legal diligence, might prevent posterior rights, yet that makes the adjudication no real right, nor could the adjudger remove tenants thereupon, though, as a legal assignation, it might give him action for mails and duties; much less can he reduce or improve other mens real rights. It was answered, That the Lords, by their recent decisions, have, in favour both of creditors and debtors, sustained apprisings and adjudications, without necessity of infeftment during the legal, which would add to the debtor's debt a year's rent; therefore, this adjudication might be a just ground to call for opposite rights, that, upon production thereof, the pursuer might know, whether there be advantage by his adjudication; but after production, if the pursuer shall insist in any reason at reduction, if the defenders produce real rights, they may exclude him.—

The Lords sustained the process, as to improbation. See Infeftment.

Fol. Dic. v. 1. p. 445. Stair, v. 2. p. 883.