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Scottish Court of Session Decisions >>
Cruickshanks v Lord Fraser. [1666] Mor 52 (8 February 1666)
URL: http://www.bailii.org/scot/cases/ScotCS/1666/Mor0100052-002.html Cite as:
[1666] Mor 52
Subject_1 ADJUDICATION and APPRISING. Subject_2 ADJUDICATION in IMPLEMENT.
Cruickshanks v. Lord Fraser
Date: 8 February 1666 Case No. No 2.
The assignee to an heritable bond, charged the heir to enter, and to grant procuratory. The assignee obtained decree, charged with horning, and denounced; and insisted for adjudication. The adjudication sustained without any renunciation.
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The clause of warrandice, contained in the end of the tack, whereby the granter was obliged to warrant the same, weighed much with the Lords. There being a bond of 6000 merks, granted by the Lord Fraser to Robert Cruickshanks, containing precept of sasine, whereupon he is infeft; the said Robert, having assigned the said bond to David Cruickshanks, who was never infeft during the cedent's lifetime; the said David charges the apparent heir of the said Robert to enter heir, to the effect, he might dispone and infeft the assignee in the said sum; and thereupon obtains decree against him, as lawfully charged to enter heir; whereupon there was a charge of horning and denounciation, and now pursues an action of adjudication of the foresaid bonds and sums; in which action, the Lord Fraser is likewise called, who is willing to make payment, so far as a valid right is established in the person of the pursuer.—It was alleged, That an adjudication is not habilis modus, for establishing the right of the foresaid sums, and bond, in the person of the pursuer, in so far as adjudications proceed, allenarly in such cases where parties renounce; whereupon hæreditas jacens is adjudged; but, in this case, there is a decreet against the apparent heirs, as lawfully charged, which constitute the party charged personally debtor; whether in a sum of money, or in facto prestando. So that in law he cannot be denuded by adjudication, no more than if he had been retoured to his predecessor; but the legal manner is, that the pursuer insist against the apparent heir, as lawfully charged to enter heir, and libel alternative to fulfil the foresaid assignation, or to pay him a liquid sum; so that if the apparent heir renounce, he may adjudge; and if he do not renounce, he may apprise for the sums contained in the decreet; either lands, or heretable bonds.——The Lords repelled the alledgeance; and sustained the adjudication, without a renunciation, as being consonant to the daily practice, there being a decreet recovered, as lawfully charged to enter heir; and the party against whom, being sufficiently discussed.
