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Scottish Court of Session Decisions >>
Fraser v M'Kenzie. [1728] Mor 10661 (26 November 1728)
URL: http://www.bailii.org/scot/cases/ScotCS/1728/Mor2510661-005.html Cite as:
[1728] Mor 10661
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In a ranking and sale of the lands of Pitcalzean, the subject in competition was an apprising of these lands, led by Campbell of Boghole 1675, of which there were two conveyances, one voluntary from Boghole to Auchlossin 1680, the other by an adjudication at the instance of Campbell of Calder, against the heir of Boghole, 1700. The voluntary right being evidently preferable, it was objected by the legal disponee, who had done diligence upon Boghole's apprising, whereby it was saved from the negative prescription, That his competitor's right was fallen non utendo, no document having been taken upon it since it was granted. It was answered, This objection is competent to any real creditor upon the estate of Pitcalzean, whose interest it would be to have Boghole's apprising cut down, but not competent to any one claiming under Boghole's apprising; for if the apprising be extinguished, there is an end of the question as to both; if it subsist, it must subsist in his person who has the only right to the same. Replied, Prescription is no other than a personal exception; it is not a real extinction, like payment, to cut down the debt; and therefore, though the voluntary assignee be excluded, because of his negligence, the apprising may well subsist to be taken up by any person who can connect a title to it. The Lords found the conveyance of the apprising by Boghole to Auchlossin prescribed non utendo.
