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.

James Baillie
v.
Watson of Saughton

1737, June 30.
Case No. No 10.

A special adjudication is not redeemable, unless upon payment of the accumulate sum, viz. the principal sum, annualrents, and a fifth part more.

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The question betwixt these parties was, Whether, in the redemption of a special adjudication, the creditor is entitled to a fifth part more than the principal sum, and annualrents accumulate in the decreet.

The arguments for the reverser were: That, by the first clause of the act 1672, concerning special adjudications, it is statute, “That the Lords shall adjudge such part of the debtor's estate, as shall be worth the principal sum, and annualrents then resting to the creditor, and a fifth part more, in respect the creditor wants the use of his money.” Whereby it is plain, the fifth part does not become a debt on the reverser, nor ought the adjudication to be led for payment thereof; as the act only provides, That subjects, equal in value to the accumulate sum, and a fifth part more, shall be adjudged; consequently, since the statute does not direct, that this fifth part shall be added to the accumulate sum, and become a debt on the reverser, it is impossible, in the case of a redemption, he can be bound to pay it. The reason likewise assigned in the law, for adding the fifth part, viz. In respect the creditor wants the use of his money, and is necessitate to take land for the same, plainly shows, That, when the creditor gets back his money, he is by no means entitled to the fifth part; for, in that event, the only reason assigned for allowing it ceases. Nor does the posterior clause, concerning the redemption, admit of this construction, as the lands are thereby declared redeemable, ‘upon payment of the principal sum and annualrents.’ Now, there can be no doubt but these words must have the same meaning here, as in the former clause, viz. ‘The principal sum and annualrents thereof, resting to the creditor;’ under which characteristic, the fifth part more can never be comprehended. It is true, the extent of the subject adjudged, must be equal in value to the principal sum and annualrents, and a fifth part more; but the extent, or value of the subject adjudged, cannot augment the sum, for payment whereof such subject is adjudged. Nor is it any objection to this sense of the words, That, at this rate, the adjudger, in the event of a redemption, shall not only lose his penalty, but even the expences of his diligence; seeing a statute must be taken as it stands, and cannot be altered but by the legislative power that introduced it. However, if it shall seem just that the expences be given to the creditor upon redemption, the same, by an equitable interpretation, may be found to fall under the words of the clause, ‘The expences of the infeftment;’ which may include the expences of the diligence led previous thereto.

For the adjudger, it was contended: That, by the state of our law, with respect to apprisings and adjudications, it was plain, 1mo, That the accumulate sum, in an adjudication, bears annualrent from the date of the decreet, though the sum, before that period, did not bear annualrent; and that, in consequence of the statute 1621. 2do, When, by the act 1672, special adjudications are allowed to be led, not only for the principal sum and annualrents, but also for a fifth part more, the accumulate sum was to bear annualrent. 3tio, Neither by the ancient nor modern law, an apprising or adjudication could be redeemed, but upon payment of the accumulate sum contained in the adjudication, and annualrents grown due thereon since the decreet; in so far as these were not satisfied by the creditor's intromission. It is true, there is this difference betwixt the law as it now stands, and as it stood formerly, viz. That, by the statute 1469, the lands were valued, and no more was apprised than was sufficient to answer the accumulate sum; so that there was no accounting for the interimrents, nor for the by gone annualrents; and the redemption was upon payment of the accumulate sum: But, by the act 1621, when apprisings were general of the debtor's whole estate, and annualrents were declared to be due upon the accumulate sum, there behoved to be an accounting before redemption, super intromissions imputed to the accumulate sum; and, if the rents did not answer the annualrents, the debtor behoved to make good the deficiency of the annualrents, as well as the accumulate sum, before he could redeem: And so the law stands, with respect to general adjudications, upon the statute 1672. But, in special adjudications upon that law, if the creditor attain the possession, there is no accounting for rents; seeing he has lands answerable to his accumulate sum, which includes the fifth part, as well as the original debt; and therefore, in that case, the adjudication is redeemable, upon payment of the accumulate sum in his adjudication, with the expences of infeftment, &c.: But, if he is barred from the possession, or if it does not yield the rent; then the adjudication is not redeemable, but upon payment of the accumulate sum and annualrents.

The law so standing, it would be a very extraordinary interpretation of this act, That, though it allows the creditor to adjudge for a fifth part more, i. e. has impignorate the lands for security thereof; yet it should allow this pledge to be redeemed, without payment of the fifth part, for which it was impignorate. 2do, That the act should allow the creditor a fifth part more for the want of the use of his money, as more beneficial than the penalty, which may be adjudged for in the general adjudication, and yet the lands should be no security for this fifth part, but that they should be redeemable without payment thereof; when it must be admitted, that a general adjudication for the penalty, is not redeemable without payment of the penalty, and interest grown due thereon.

As to the argument, That a special adjudication is supposed by the act to be redeemable, upon payment of the principal sum and annualrents, for which it did proceed, it was answered, The intention of the clause was not to settle the conditions of the reversion, these being established by the common law, viz. That the pledge could not be redeemed, without payment of the debt for which it was impignorate. And as, by the former part of the clause, the lands were to be adjudged in security of the principal sum and annualrents, and a fifth part more; it needed no statute to determine, that, upon payment of these, together with the growing annualrents, from the date of the decreet, the lands should be redeemable. But what it singly intended, was to limit the legal of such special adjudication, that it should not endure so long as that of a general one. The observation anent the fifth part's being added, only because the creditor is necessitate to take land for the same, and that therefore, when he got his money, the reason of it ceased, is to misconstruct the law; for the creditor wants the use of his money when he cannot obtain payment, but is forced to adjudge; which, being sale the creditor is obliged to make, therefore the law gives him a fifth part more, without any consideration of what shall afterwards occur, whether the debtor happen to redeem the lands or not.

The Lords found, That the redemption could not proceed, but upon payment of the principal sum, annualrents, and a fifth part more; and therefore found the order of redemption void.

Fol. Dic. v. I. p. 6. C. Home, No 66. p. 113.