Scottish Court of Session Decisions

Subject_1 ADJUDICATION and APPRISING.
Subject_2 REDEMPTION of APPRISINGS and ADJUDICATIONS.

Sir George Inner of Coxtoun, and James Wiseman, his Assignee,
v.
James Chalmers

Date: 21 June 1715
Case No. No 5.

A compriser may, by contract within the legal, perpetuate the reversion.

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James Chalmers having right by progress, to an apprising of the lands of Linkwoods, led in the 1671, there is a declarator of redemption pursued by Coxtoun, and Wiseman, his assignee; and a declarator of expiration of the legal by the said James Chalmers as having right to the comprising.

It was alleged for the reverser, That the comprising was still redeemable; because, by contract betwixt one of Chalmers' authors having right to the comprising, and the tutor of the debtor, in anno 1672, the comprising was declared redeemable for payment of 6000 merks; which contract is narrated in the conveyance to Chalmers.

It was answered: The contract contains a special provision, that the sums should be paid at Whitsunday 1673; as also, that the said agreement, nor no clause therein, should any ways invalidate the right to the comprising, nor hinder the running of the legal thereof.

It was replied: There was a second restriction by a posterior contract, in anno 1685, which did perpetuate the reversion; for, by that contract, the comprising was turned into a wadset, redeemable for 8000 merks, and a locality for payment of the annualrent.

Wiseman, the compriser, objected against the said wadset; and alleged, That the said contract, 1685, was a personal contract, which was only valid against the contractors and their heirs; but could take no effect against him, a singular successor, in the right of the comprising, which is now expired, and whereupon infeftment has followed.

It was answered: That the first contract 1672, did restrict the comprising to 6000 merks; and albeit that contract contained the qualities and provisions above-mentioned; yet the posterior contract 1685, did renounce and extinguish these qualities, and perpetuate the reversion; so that the comprising could never expire, both contracts being within the legal; for, whatever may be argued as to the effect of backbonds of trust, in relation to comprising, that the same may be thought to be ineffectual against singular successors, after expiration of the legal; yet comprisers, within the legal, may prorogate or perpetuate the reversion. The expiration of the legal being a privilege, provided in favours of creditors, which can be effectually renounced; and an apprising is a diligence of that nature, that the purchaser thereof ought to know it is extinguishable by receipts, discharges, compensations, of all which no vestige is to be found upon record; and for that same reason, the benefit of the legal may be prorogate or renounced. 2do, Purchasers bona fide, for a just and equivalent onerous cause, have many favours and privileges indulged to them by law, that they may not be losers in what they fairly acquired; and, therefore, Chalmers's case might be favourable, if he could allege that he had purchased the comprised lands at an adequate value, seeing his author in the full possession thereof, and the legal expired. But the fact is quite otherwise; for the price paid was the very sum of 8000 merks in the wadset, and the possession of the haill lands apprised never attained by his author.

“The Lords having considered the contract 1672, and the posterior contract in the 1685, wadsetting a part of the lands, apprised under reversion, for the sum of 8000 merks, and both contracts within the legal, and that the apprised lands were not purchased for an adequate value; they repel the defence, and sustain the declarator of redemption”

Dalrymple, No 146, p. 200.