Scottish Court of Session Decisions

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

Alexander M'Kenzie of Pitglasse
v.
Ross of Auchinleck

Date: 14 January 1669
Case No. No 10.

A person possessing upon two apprisings, must attribute his intromission to the first apprising only, till it be satisfied.

Having sold a part of the lands within the legal, an appriser found accountable, not for their real worth, but for what he had actually received.

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Alexander M'Kenzie having right to two comprisings of the lands of Auchinleck, one in anno 1644, and another in anno 1647, which being alleged to have been satisfied within the legals, and the matter referred to an auditor, who reported these points to the Lords: 1mo, Whether the appriser should account for the mails and duties, so as to impute the same to both apprisings, as to years after the second apprising, or to impute them wholly to the first apprising during its legal, and then to the second apprising during its legal.—It was alleged for the appriser, that he having two titles in his person, it was free for him to impute his possession to either of them; and yet he was so favourable, as not to crave his option, but to impute proportionally to both; albeit in law, when receipts are not specially as to one cause, electio est debitoris. 2do, When any payment is made by a debtor to his creditor indefinitely, it is still imputed to the annualrents in the first place, before it can satisfy any slock; so that any satisfaction gotten by him, must first be imputed to the annualrent of both the sums, and then to the stock of the first.—It was alleged for Auchinleck, That the intromission could only be attribute to the first apprising; 1mo, Because by that right the appriser entered in possession, and cannot invert his possession to a third party's prejudice. 2do, The first apprising est potior jure; for if the two apprisings were in different persons, he that had the second, could never attain possession against the first. 3tio, In dubio solutio est imputanda in duriorem sortem, and therefore to the first apprising; for if imputation be made to both, the first apprising will not be satisfied within the legal, and the debtor's right will be taken away, which is most unfavourable. 4to, The appriser, as he did not possess by the second apprising, so he could not, because the first apprising carries the right of property, and the second carries only the right of reversion.

The Lords found the possession was only to be attribute to the first apprising, and not to the second, while the first were satisfied.

The next point was, that it was alleged the appriser had sold a part of the lands within the legal; and therefore the worth of these lands ought to be allowed in satisfaction of the sums.—It was answered, That the appriser could not dispone the lands simply, but only his right of apprising, which would still be redeemable from his assignee, as well as from himself.

The Lords found, That he was not accountable for the whole value of the lands disponed, but for what sums he actually received for the lands disponed, to be proven scripto vel juramento.

The next point was, as to the prices of the victual, whether the. fiars, or greatest prices were due.

The Lords allowed the debtor to prove the greatest prices, and also to produce the fiars, reserving to themselves the modification; next, as to the rental, the appriser desired a joint probation, especially it being in the Highlands, where the witnesses are suspect.

The Lords would not grant a joint probation, but ordained the probation to be by witnesses above exception.

Fol. Dic. v. 1. p. 21. Stair, v. 1. p. 580.