Scottish Court of Session Decisions

Subject_1 COMPETITION.
Subject_2 SECT. XI.

Apprisings and Adjudications with Voluntary Rights.

Mr Walter Stirling, &c
v.
The Annualrenters upon the Estate of Ballagan

Date: 26 February 1724
Case No. No 68.

In a competition with an infeftment of annualrent, found that a charge upon a comprising gave no preference.

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In the ranking of the creditors of Ballagan, a competition arose betwixt the annualrenters and adjudgers; whereof the case was, that the heritable bonds and writs in favours of the annualrenters, were prior to any step of diligence upon the adjudications; but the infeftments thereupon were posterior to the adjudications and charge against the superior; and the adjudgers were never infeft.

For the adjudgers it was pleaded, That by act 62, 1661, confirmed by constant custom, an adjudication with a charge is equal to adjudication with infeftment, which must prefer it to all posterior infeftments. And there is good ground it should be so; for, if a charge against the superior is the last step the law directs to be taken during the legal, superseding the necessity of infeftment till after expiration thereof, the charge ought to be considered as an absolute security during that time; otherwise every adjudger would be under a necessity of taking immediate infeftment, to his own great inconvenience, and the utter ruin of the debtor.

It was answered, That these charges against the superior tend only to regulate the competitions of adjudications one with another, but were never designed to give a preference in competition with voluntary rights; as was expressly found, Justice against Aikenhead, No 66. p. 2823. For an adjudication with a charge, is not so much as a real right to require a special service; how can it then compete with an infeftment?

The Lords found, That the heritable bonds and Writs in favours of the annualrenters and infefters, being prior to the adjudications; the infeftments on the rights of annualrent, though posterior to the adjudication and charge thereon, are preferable to the said adjudications.

It was likewise pleaded in favours of the annualrenters, That the charge against the superior, at the adjudger's instance, was executed against an apparent heir not infeft, who could grant no infeftment; and consequently the charge was null. But the Lords took it up upon the abstract point, and determined accordingly.

Fol. Dic. v. 1. p. 182. Rem. Dec. No 48. p. 95.