Scottish Court of Session Decisions

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

George Johnstoun
v.
Sir Charles Erskine, Lord Lyon

Date: 19 January 1669
Case No. No 3.

An apprising led against an apparent heir, lawfully charged to enter, was found redeemable after the apparent heir's death, by the heir of the person last infect, though he did not represent the apparent heir.

Click here to view a pdf copy of this documet : PDF Copy

Umquhile Richard Irwing having died infeft in the ten-merk land of Knockhill, his son, had a son, and four daughters; his son being his apparent heir, and being indebted a sum to Mr James Alexander, he charged him to enter heir in special to Richard, his grandfather, and apprised the lands from him, whereunto Sir Charles Erskine has now right; the said son being now dead, and never infeft, Mr George Johnstoun takes right from the four female grandchildren, and serves them heirs to their grandfather; but before they were infeft, there was an infeftment or charge upon the apprising, at the instance of Mr James Alexander; and in a former competition, Sir Charles was preferred upon Mr James Alexander's right, as denuding the male grandchild, apparent heir for the time, in the same manner as if he had been infeft; now, Mr George Johnstoun, upon the females right, raises a declarator, to hear and see it found and declared, that Mr James Alexander's apprising, was satisfied, and extinct by intromission, before the legal was expired. It was alleged that the pursuers, as heirs served and entered to Richard their grandfather, had no interest to redeem the apprising, led against Robert their brother, unless they were also entered heirs to their brother; which Robert, if he were alive, might redeem the apprising against himself; so that the legal reversion being in his person, cannot belong to his grandfather's heirs, but to his own heirs; and, as he, or his heirs, could only redeem, so can they only declare the apprising to be satisfied by intromission; neither can the reversion belong to two, both to the heirs of Robert, who was charged to enter heir, and to the heirs of the grandfather who died last infeft.—It was answered, That Robert never having in his person any real right, as never being infeft, albeit fictione juris, the act of Parliament gives the creditors like right upon his disobedience to enter, being charged, as if he had entered; yet that is a mere passive title, and could give no active title to Robert, or any representing him, either to redeem, or to call the appriser to an account, till they were entered heirs to the person last infeft; for albeit the creditor appriser has a real right, yet the disobedient apparent heir has none; and albeit the Lords might suffer the disobedient apparent heir, or his heirs, to redeem the apprising; because the appriser had no interest to oppose the same, being satisfied; much less can the appriser now oppose the pursuers, who being infeft as heirs to Richard, have the real right of see in their person, and consequently the right of the reversion of the apprising led against Richard's apparent heir; which being a minor right, is implied and included in the property:

Which the Lords sustained, and found that the heirs of the person last infeft, being infeft, might redeem, or declare against an appriser, who apprised from an apparent heir, lawfully charged, albeit they were not of that apparent heir.

Fol. Dic. v. 1. p. 22. Stair, v. 1. p. 584.

*** The same case is reported by Gosford. See Heir Apparent.