Scottish Court of Session Decisions

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

Clapperton
v.
Laird Tarsonce

Date: 20 January 1666
Case No. No 9.

The legal being prorogated from seven to ten years, the appriser became bound to account for intromissions during the last three years, as well as the former seven.

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Clapperton raises a declarator against Tarsonce, for declaring an apprising at his instance, against the pursuer, to have been satisfied within the legal, by payment of the sums by the debtor, or by intromission with the mails and duties, either within the seven years of the first legal, or within the three years thereafter; during which, by the late act of Parliament, apprising's not expired in anno 1652, were declared redeemable, or by sums received from such as bought from the appriser, a part of the apprised lands.—It was alleged absolvitor from that member, of satisfaction by the intromission during these three last years; because the act of Parliament does not expressly prorogate the reversion, but declares the lands redeemable within three years; but does express nothing to whom the mails and duties shall belong, which cannot be imputed against the appriser, to satisfy the apprising; because he enjoyed them as his own, the apprising by the law then standing, being expired; et bona fide possessor facit fructus consumptos suos, and therefore a subsequent law cannot be drawn back, to make him account for that which he might have consumed the more lavishly, thinking it his own.—It was answered, That apprisings were odious, being the taking away the whole right of lands, for a sum without proportion to the true value; and therefore all acts retrenching them, ought to be favourably interpreted, especially where the appriser gets all his own; and therefore the act declaring them redeemable, must be understood in the same case as they were before, and that was either by payment, or intromission.

The Lords repelled the defence, and sustained the declarator, both as to payment and intromission; and as to the sum the appriser got for a part of the land, fold by him irredeemably, after the seven years legal was expired. And seeing the acquirer of that right was called; they found it also redeemable from him upon payment of the price paid for it, cum omni causa, and he to be accountable for the rents, unless the pursuer would ratify his right, as an irredeemable right; in which case the price should be accounted as a part of the sums apprised for.

Stair, v. 1. p. 341.