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Scottish Court of Session Decisions >>
Andrew Hunter of Lochrinny v Elizabeth and Margaret Hunters. [1741] Mor 175 (3 July 1741)
URL: http://www.bailii.org/scot/cases/ScotCS/1741/Mor0100175-008.html Cite as:
[1741] Mor 175
Subject_1 ADJUDICATION and APPRISING. Subject_2 FORMALITIES of the DILIGENCE.
Andrew Hunter of Lochrinny v. Elizabeth and Margaret Hunters
Date: 3 July 1741 Case No. No 8.
An adjudication, of which the special charge was blank in the lands restricted; and the question reserved, whether it ought not to be annulled in toto?
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In the process of declarator of expiry of the legal of three adjudications, pursued at the instance of Lochrinny against the defenders, it was objected, That the special charge, whereon one of them was founded, is blank in the lands, and consequently null, the defenders father not being infeft at the time.
Answered, That although the defenders in that adjudication, were only in a state of apparency the time of leading thereof; yet, as he was afterwards infeft in the lands of Greenan, one of the three parcels adjudged, his posterior infeftment must accresce, and validate the adjudication as to that parcel.
Replied, That an adjudication, only taking the right out of the person of their father, such as he had it at the time of the adjudication, which, in this case, was none at all but a mere right of apparency; his posterior infeftment can never accresce, no more than an adjudication could be made to carry an estate, purchased after the date thereof.
Duplied for the pursuer, The simile, though just, does not apply: For here the lands of Greenan were a part of the heritage that belonged to the common debtor, and which fell under his right of apparency to his father; and, it being instructed that he was infeft in these lands, though, after the date of the adjudication, such infeftment must accresce to the adjudger. And as to the objection, that the lands are not filled up in the special charge, it is believed, he cannot be in a worse situation, than if no such charge had been produced, the decreet narrating it to be produced, and so a complete diligence by itself; and the pursuer is not obliged, post tantum temporis, to produce the letters of special charge.
The Lords sustained the nullity, in so far as to void the adjudication as to the accumulations and expiry of the legal, reserving to be heard, whether it is void in toto.
