Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JAMES DALRYMPLE OF STAIR.

John Mitchel
v.
Tullos

Date: 29 July 1674

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Robert Schaw, having apprised the lands of Lethingie from his brother Michael Schaw, dispones the same, for security of 5000 merks, to his sister Jean Schaw, Tullos her husband, and their heirs. Thereafter, John Mitchel, stabler, appriseth the same lands from Robert Schaw: and, in competition betwixt Tullos and him for the maills and duties of the lands, it was alleged by Tullos, That he ought to be preferred; because Mitchel's apprising is null, as being deduced after the late Act of Parliament anent adjudications, discharging all apprisings thereafter; and, albeit there be an exception where lands were already apprised, and the legal not expired, yet that can only be understood of apprisings deduced against the same common debtor, or his heirs, being entered or charged: And, albeit there be here an expired apprising of the lands of Lethingie, led by Robert Schaw against Michael Schaw, whereby an apprising, after the said Act, against Michael, or against Robert, as heir to Michael, would be valid,—yet John Mitchel's apprising is only against Robert, proprio nomine, for Robert's own debt. It was answered, That the exception in the Act of Parliament is general; and that the reason of the exception must be, because, where apprisings are led, there cannot be an adjudication of a parcel of the land; the whole being affected by the apprising, and the right of reversion only remaining, which is not divisible; and that this, at least, being dubious, John Mitchel was in bona fide so to proceed, and should not lose his legal diligence; which can only give him the reversion, upon payment of 5000 merks, which he is willing to pay, in so far as Jean Schaw, who was fiar of the right, was not satisfied by her intromission with the rents of the lands, either after the right or before the same. It was replied, That Jean's intromission, before the right, cannot satisfy the same, it being only extrinsic, and no liquid compensation; nor can it be instantly verified, Jean being dead. The Lords sustained Mitchel's apprising, that he might have the benefit to purge Tullos's right, in so far as he was not satisfied, by intromission, by virtue of the right; but would not sustain prior intromission, not liquidated.

Vol. II, Page 281.