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Scottish Court of Session Decisions >>
M'Dougal v Applecross. [1686] Mor 16308 (00 January 1686)
URL: http://www.bailii.org/scot/cases/ScotCS/1686/Mor3716308-217.html
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In a reduction and improbation at the instance of Sir Andrew M'Dougal, as having right to an apprising against my Lord Lovat, compearance being made for Applecross, who had right from the tutor of Lovat to a prior apprising.
It was alleged for the pursuer, that Applecross's apprisings having come in the person of the tutor of Lovat during the tutory, it must be presumed acquired with the pupil's means, and for his behoof.
Answered for the defender: The allegeance of intus habes, or of acquiring to the minor's behoof, is only competent to the pupil and his heirs, and not to a creditor or successor by diligence; and it is only competent against the tutor and his heirs, and not to a creditor or successor by diligence; and it is only competent against the tutor or his heirs, and not against his singular successors in lands and real rights.
Replied for the pursuer: Rights in the person of the debtor are affectable by the comprising. It was so found in the case of James Cleland and Lamington, against a singular successor in personal rights; and there is the same reason why the like should hold in real rights.
The Lords sustained the allegeance and reply for the pursuer, and found, that the same was competent to him against a tutor's singular successor ante redditas rationes; and found, that though it did appear in the event of counting, that the tutor had counted qua talis, without claiming allowance for the apprising acquired by him, yet the said apprising should be always redeemable by the heir and his creditor, upon payment of the true sums, seeing the tutor might have interrupted the legal by timeously using an order.
