Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Subject_2 I sat in the Outer-House this week.

The Officers of State
v.
The Viscount of Teviot

Date: 8 December 1702

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In the competition betwixt the Officers of State and the Viscount of Teviot, as donatar to the late Earl of Dunfermline's forfeiture on the one part, and the creditors on the other, the Lords had formerly found the creditors, by their apprisings and adjudications, had right to the tack which the late Earl had of the teinds of Dunfermline, not only for the years preceding 1695, when it run out and expired, but also for subsequent years, per tacitarti relocationem, aye and while they were legally interrupted by the Officers of State: And it being now contended, by the Queen's Advocate, that the creditors had not apprised the teinds of the lordship of Dunfermline; and particularly, Oliphant of Carpow's apprising in 1665, mentions indeed the lordships of Fyvie and Urquhart, (which is nomen universitatis;) but when it comes to the lordship and regality of Dunfermline, it only expresses some particular roums and lands; and then adds, “with the tacks and teinds of the same:” which being relative words, can go no farther than the lands immediately above designed; especially seeing it noways apprises the said lordship itself, and that comprisings carrying away whole estates are strictissime to be interpreted.

Answered,—Creditors doing diligence are not like voluntary purchasers and buyers, who have access to see the writs, which are abstracted from creditors and adjudgers, who are left to fish as they best can; and Carpow has apprised all other right, title, and interest, competent to the debtor, with all tacks of teinds, &c. which certainly comprehends all; which is not only consonant to the analogy of the common law,. alt. C. de Annali Exceptione, that actor videtur omne jus suum in judicium deduzisse; et l. 134. sec. 1. D. de Verb. Obliga t. Etiam ea quœ prœfationibus concipiuntur, in stipulationibus repetita creduntur; but also to the rules of interpretation of dubious and ambiguous clauses; as Stair lays them down, lib. 4. tit. 42. num. 21. that they must be understood according to the meaning of parties, and the matter expressed, especially if it be in materia favorabili; and none can doubt but the creditor designed to apprise all rights standing in his debtor's person. And in Dury,—23d March 1622, Scot of Gallowshiels against the Lord Borthwick,—some lands being erected into a tenantry, and a part of them apprised, and the lands of Houlatston omitted, yet the Lords extended the apprising to these lands; and, 19th June 1635, Rule against Rome, an apprising of lands was found to carry a tack, seeing the debtor had no other right but a tack; for minus comprehenditur sub majore; and lately, in 1696, in the competition among the Creditors of Hunter of Muirhouse, the Lords found the lands of Drumsheugh adjudged by the general words, though neither united nor contigue with the lands of Murrows.

The Lords found Carpow's apprising a sufficient title to carry the whole teinds of the Lordship of Dunfermline. But it would not be so clear, if it had been an apprising of a reversion; for that might go no farther than reversions of the lands nominativi apprised, but not of those which were only inserted designative. And the Act of the Meeting of Estates, in 1689, with the Act of Parliament following thereon in 1690, mitigate the rigour of our former laws about forfeitures, and favour real creditors quoad their just debts.

Vol. II. Page 164.