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.

Mrs Barbara Farquhar
v.
William Mowat & Co Merchants in Aberdeen.

Date: 14 January 1762
Case No. No 12.

A person adjudging an estate, under sequestration, not obliged to accept of a part, in terms of the alternative of the act 1672

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William Mowat and company, having slopt payment in 1756, they made a surrender of their effects to certain trustees, for behoof of their whole creditors; but some of these creditors, who were unwilling to accede to the trust-right, having proceeded to lead adjudications, for attaching the bankrupt's heritable subjects, a question arose betwixt them and the trustees, which was determined in, favour of the adjudgers, upon the 25th July 1759, (See Bankrupt, from Faculty Collection, No 193. p. 345.)

In July 1760, the whole subjects belonging to William Mowat, were sequestrated upon the application of the trustees, and a factor was appointed by the Court.

Barbara Farquhar, a creditor to the extent of 2000 merks, having, amongst others, brought a process of, adjudication, the defenders offered to produce a progress, in terms of the act 1672; and, after having done so insisted upon her chasing any part she pleased; which part, they declared themselves willing to clear of all incumbrances.

Pleaded for the pursuer: That she was not obliged to make choice of any part, as certain incumbrances lay upon the whole; and that the sequestration must be an invincible obstacle to the method proposed; in respect, that both the bankrupt himself, and his trustees, were thereby divested, and the management of his estate put into the hands of the Court.

Answered: As the trustees are parties to this process, they will consent to dispone such lands as the adjudger shall chuse; and as the sequestration; was sought, for no other reason, but the opposition made by the pursuer, and a few other creditors, to the general measures that were proposed; so it will be removed, so soon as the pursuer shall have made her choice, and proved the rental of the lands.

Replied: The trust-right was undoubtedly at an end by the sequestration and as that sequestration was made for the behoof of the whole creditors, it never can be removed, but upon an application from them all. Besides, there is no proper rental produced. The paper lodged in process, called a rental of Tarby and Colpna, contains nothing but the gross money rent, and victual rent of these estates, with the deductions. Whereas, the practice has been, in such cases, to give in a very particular rental, containing the rent of all the several farms, and expressing the particular parcel, that is to be set off for payment of the debt. Nor does this rental mention any thing of the rent of the houses and lands, in and about the town of Aberdeen; to which, likewise, no progress has hitherto been produced. In short, the conduct of the defenders, in the management, of this process, seems to have been calculated for no other purpose, than to procure a delay, in order to try what might be done in the way of negociation and composition.

The Lords decerned in the adjudication of the whole estate.

Act. Burnet. Alt. Walter Stewart. Fol. Dic. v. 3. p. 3. Fac. Col. No. 75. p. 169.