Scottish Court of Session Decisions

Subject_1 ADJUDICATION and APPRISING.
Subject_2 ADJUDICATION Upon The ACT 1672.
Subject_3 *** The import of the act is as follows: - Considering how much comprisings have departed from the original design of the legislature, which never meant that great estates should be carried away for inconsiderable debts; nor that messengers, or ignorant persons, should judge in matters of so great importance: And, considering the great prejudice to trade and commerce, proceeding from the length of the legal reversion, during which, the creditor cannot command his money, and both debtor and creditor neglect the improvement of the lands; and, that even after the legal is expired, comprisings become the foundation of much fraud; the right thereof being sometimes acquired by the apparent heir of the debtor, who thereby secluded lawful creditors: And as, by the ignorance of notaries and messengers, and in consequence of many unnecessary solemnities, nullities have often happened in the diligences, and at all times they have been most expensive, by means of penalties and sheriff fees: In order to secure equally the interests of debtors and creditors, it is enacted, That in place of apprisings, the Lords of Session shall, at the instance of any creditor against his debtor, principal or cautioner, adjudge and decern to the creditor, in satisfaction of his debt, as constituted, such a portion of the debtor's estate, consisting in lands and other rights, which were in use to be apprised, as shall be worth the sum, principal and interest, then due, and a fifth part more, in compensation of the want of the use of the money, and the necessity of taking land in lieu of it; and these over and above the composition to the superior, and the expences of the infeftment. The adjudication shall be made according to the rates of the lands and other rights in the neighbourhood, and proof shall be taken by the Lords, on the part of the creditor, and likewise of the debtor, (if he shall desire it,) of the yearly rent and value of the lands and rights, and what they have yielded for five years preceding, and what they may pay, and the rates and prices at which such lands and rights are usually sold in the neighbourhood; with power to the Lords to determine what warrandice the debtor shall be liable in to the creditor, of the lands and rights so adjudged. Upon the decreet of adjudication, it shall be lawful for the creditor, immediately to enter to the possession of the lands or other rights, and so intromit with the mails and duties thereof, in satisfaction of his annualrent, during the not redemption; and he shall not be liable to any restriction, or action of count and reckoning. If the lands adjudged be affected with liferents, or any casualty, or if the right adjudged be such as to yield no rent during the legal to be now appointed, this shall be expressed in the decrees, together with that part of the sum effeiring thereto; that in case of redemption, the creditor may have his annualrent for that part of his sum, for which he had no profit; which lands, and other rights adjudged, shall belong heritably and irredeemably to the creditor, if they be not redeemed within the space of five years, after the decreet of adjudication, by payment or consignation of the sums, principal and interest, for which the adjudication proceeded, the composition paid to the superior, and expences, in obtaining infeftment, and interest thereof, in so far as not satisfied by possession, in manner mentioned. The creditor being once in peaceable possession, conform to the decreet of adjudication, it shall not be lawful for him to use any farther execution against his debtor, except in case of eviction upon the warrandice, which the Court shall order. But it shall be lawful for the creditor to use all manner of diligence against his debtor, principal or cautioner, by horning, caption, arrestment, or otherwise, until he enter to the actual possession. Comprisings are prohibited in future, without prejudice of any comprisings led before the date of the act, or to be deduced, of lands or other rights already apprised, of which the legal is not expired, which are to be regulated by the former laws. It is provided and declared, that if the debtor shall abstract the writs and evidents of the lands, and other rights to be adjudged, and shall not produce sufficient rights and deliver them, or transumpts of them, to the creditor, such as the Lords shall judge necessary; and, if he shall not renounce the possession, and ratify the decreet of adjudication, in order that the creditor may enter summarily and without impediment, so that he may have a clear right and quiet possession; then, and in that case, it shall be lawful for the creditor to adjudge all, or any right belonging to his debtor, in the same manner as he might have apprised them, according to the act of Parliament 1661, under the reversion, and with the power competent to other creditors, expressed in the said act. It is provided, that neither the superior, nor the adjudger, shall be prejudged by the new act; but that they shall be in the same case after citation in an adjudication, as if apprising were led of the lands at that time, and a charge given to the superior thereupon. Decreets of adjudication shall be allowed by the Lords of Session, as apprisings used to be; and the allowance shall be registered in the same manner, and under the same certification, with the allowance of comprisings, that it may be known; and that creditors may not be disappointed, by adjudging lands already adjudged to others.

Cha. II. Sect. 19. 6th Sep. 1672. p. 501. duodecimo.

Earl of Aberdeen
v.
Tolquhon

Date: 17 June 1709
Case No. No 9.

A creditor not obliged to accept of a partial adjudication, unless incumbrances are actually purged. Equivalents must not be obtruded in place of this.

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The deceased Sir Alexander Forbes of Tolquhon, being debtor to the Earl of Aberdeen, in sundry considerable sums by bond, there are decreets of constitution obtained against this Tolquhon, as lawfully charged to enter heir to his uncle, and thereon a summons of adjudication raised; wherein Tolquhon compears, and craves the benefit of the alternative in the 19th act 1672, introducing adjudications, offering lands to the value of the sums, and a fifth part more, upon his producing a sufficient progress, purging incumbrances, and ratifying his right, and thereon gets a term to prove the rental, purge and ratify. The Earl, at that diet, produces a condescendence of incumbrances; and, in regard they are not purged, craves a total adjudication.

Objected by Tolquhon, That the liferents being impurgeable, the Lords, on that account, might determine what warrandice the debtor should give against them; and quoad the inhibitions, the Earl's debts are prior, and so cannot be quarrelled on that head. Tertio, As to the hornings produced, some of them stand suspended; and the Earl may secure himself against the rest, by taking the gift of Tolquhon's escheat.

Answered: The act of Parliament obliges the debtor to cede the possession, which he can never do as to the lands liferented; and no warrandice can supply this, it being safer incumbere rei quam personæ; and, though he be in no hazard from the inhibitions, yet if he be restricted to a partial adjudication, he runs the manifest hazard of the hail other creditors adjudging within year and day, and so coming in pari passu with him; and his ratification will reduce on the act of Parliament 1621; neither is the taking his escheat any salvo; for that would burden the Earl with the payment of the debts contained in the hornings, where on the escheat is taken.

The Lords remembered, That though debtors used to retard the first adjudger, by offering a progress, and to purge and ratify; yet these partial adjudications had seldom or never taken effect, as prejudicial to creditors; and, that equivalents were not to be obtruded in place of actual purging of incumbrances; therefore they refused to restrict the Earl to a partial adjudication, unless the debtor either offered to purge them at the bar, or instructed, that they were already satisfied and paid.

On the other hand, the prejudicede btors incur, by their total adjudications is that it obliges all the other creditors to run and do the same diligence within year and day, otherwise to lose their debts; and yet, it is difficult for incumbered debtors to pay all their sums in the narrow current of a year. So, in short, to balance and sum up the account, a total adjudication is bad for the debtors, and a partial one, as insecure for the creditors; but few or none of them have taken any effect; and debtors, after having gained some delay, are forced to yield at last to a total adjudication.

Fol. Dic. v. 1. p.6. Fountainhall, v. 2. p. 504.