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BOOK II.

The adjudger, though in possession of the lands, is not vassal during the legal,

Adjudication contra hæreditatem jacentem.

46. But though an adjudication be considered, in questions of succession, as a right of property, it does not constitute the adjudger vassal in the lands during the legal 359, though he should be infeft: For an adjudger, though he be a purchaser, is not a voluntary one; he is brought under the necessity of insisting for that decree which makes him a purchaser, that he may recover his debt; so that with regard to him, the adjudication is to be accounted a step of diligence which he may abandon, if he shall judge any other method more effectual for his payment; St. B. 3. T. 2. § 30; Durie, March 15. 1628, Lo. Blantyre, (DICT. p. 217.). Nay, this obtains, though the adjudger should be both infeft and in possession; for as the adjudication is led for the special purpose of the payment of debt, redemption by payment made within the legal, takes off all the effects of the diligence retro, as if it had never been used: The reverser therefore continues vassal in the judgment of law, as long as the right of reversion is competent to him; because so long it is in his power to extinguish the adjudication by payment. Sir James Steuart, voce COMPRISING, observes, in support of this position, that it was anciently the practice of exchequer, in the case of an appriser of lands holden of the crown, to take him bound at his entry that he should renew his seisin upon the expiration of the legal, as judging that it was only from that period that he became the King's vassal. And agreeably to this doctrine, the casualties of superiority were found to fall during the legal, by the death, not of the appriser, though he should be both infeft and in possession, but of the reverser, July 24, 1739, Cred. of Bonhard, (DICT. p. 16453.) 360. Upon the same medium, sums secured by adjudication were found to be carried by a general clause in a disposition, of all debts real and personal due to the granter, notwithstanding the defence pleaded by the disponer's heir, that an adjudication is a legal sale of the debtor's lands, redeemable upon payment of his debts, which must be extinguished by the judicial conveyance of the lands to the creditor, and so could not be comprehended under a general description of debts. The court considered, that adjudication ought not to have the effect of extinguishing the debtor's obligation to the prejudice of the creditor, who frequently judges that step of diligence necessary for his security, but may nevertheless, if he find it ineffectual, betake himself to any other lawful method of recovering his debt *; and where legal diligence can be used by the adjudger upon the debt, for the payment or security of which adjudication is led, it is impossible to maintain that that debt is extinguished, Fac. Coll. ii. 257, (Wades, December 11. 1760, DICT. p. 221.).

47. The general and special adjudications hitherto explained, were substituted, by the act 1672, in the place of apprisings; but there are two other kinds of adjudication which were received in our old law at the same time with apprisings, viz. adjudications on a decree cognitionis causa, otherwise called contra hæreditatem jacentem, and adjudications in implement. As to the first, the method prescribed

* See Kilk. Mabens, July 25. 1740, Dicт. p. 219, (supr. § 44.)

359 It would seem not to have this effect until decree of declarator of expiry of the legal; or until the adjudger's right has become indefeasible by possession on charter and sasine for the years of prescription. Vid. supr. § 22. in not.

360 Vid. supr. t. 5. § 7,

prescribed by 1540, C. 106., to creditors, for attaching the heritage of their deceased debtors, by charging the apparent heir to enter to his ancestor, first in general, and then in special, and upon his failure to apprise the lands, has been explained above, § 11. et seq. But where the debtor's apparent heir, after being charged in general, renounces all benefit which might accrue to him by the succession, he cannot with propriety be charged to enter heir in special to an estate which he has already renounced; nor did the act 1540 make any provision how the right of the lands belonging to the deceased debtor might in that case be carried to the creditor. This defect was supplied by the following expedient, which, being introduced by necessity, was approved of by our judges without a statute. Though the heir renouncing could not be subjected to the payment of his ancestor's debts, the creditor was allowed to summon him for form's sake, in a suit for proving the debt due by the deceased, in consequence of which a decree was recovered, not against the defender, who was absolved from the suit in respect of his renunciation, but against the hæreditas jacens of the deceased, which was thereby subjected to the creditor's diligence. This decree got the name of cognitionis causa, because it was intended for the single purpose of declaring or cognoscing the extent of the debt due by the deceased, that adjudication might proceed upon it against the lands. By the old practice, the creditor, where the debt was liquid, protested for adjudication in the process of cognition; and a decree of adjudication was granted summarily in consequence of the protestation, St. B. 3. T. 2. § 46.; but now adjudication cannot pass without a previous summons for that purpose. The creditor however sometimes inserts a conclusion of adjudication in his summons of constitution following upon the general charge, in case the heir shall in that process renounce the succession; and a decree of adjudication proceeding on that alternative in the summons is effectual to the creditor. This diligence, grounded on the renunciation of the heir, was styled, not an apprising, which was an appellation proper to the decrees pronounced by messengers on the appretiation of an inquest, but an adjudication, because it was a sentence of the court of session or other judge-ordinary, adjudg ing the hæreditas jacens of the debtor deceased, to the creditor pur

suer.

48. Though no adjudication can, in the common case, carry any rents due out of the subject adjudged previously to the date of the decree, for the reason assigned supr. § 8. ; yet in the special case of adjudications contra hæreditatem jacentem, such rents may be adjudged. Put the case, that a debtor dies to whom some past rents were due by the tenants, and that after his death the tenants have run into a farther arrear of rent; it must be admitted, that the rents which were fallen due before the debtor's death cannot be carried by adjudication, because they were separated from his heritable estate before his death, and so descended to his executors as a moveable subject which was in bonis defuncti; but the rents incurred after his death cannot be said to have belonged to him, since they did not even exist at his death, and are truly a rent grown out of his heritable estate since his death, which for that reason would have accrued to his heir if he had entered. As, therefore, by the heir's renunciation of the debtor's succession, the adjudger comes in the heir's place, these rents must, necessitate juris, be car

ried

TITLE XII.

What is carried by adjudication

contra hæreditatem jacentem.

Book II.

Redemption of adjudications contra hæreditatem jacentem.

ried by the creditor's adjudication against the hæreditas jacens, though fallen due previously to the date of it, there being no other method known in law by which they may be affected by diligence, Cr. Lib. 3. Dieg. 2. § 23. This rule does not, in the opinion of some lawyers, extend to an adjudication led upon a special charge against the heir; because that kind of adjudication proceeds on a fictio juris, holding the heir as entered, and therefore ought to carry none of the rents fallen due before the decree, more than it could have done if it had proceeded on the heir's actual entry, Bankt. B. 3. T. 2. § 43. Yet the contrary was decided, Feb. 13. 1740, L. Kilbucho 361, which seems to have proceeded on this ground, That there was no other way for the creditor to come at these rents, if the apparent heir abstained from the possession, which has been thought reason enough for establishing this rule in adjudications contra hæreditatem jacentem*. On the same ground of law, heritable sums which have become moveable since the debtor's death, perhaps by an order of redemption, are carried by an adjudication against the hæreditas jacens, because these subjects can be reached by no other form of law, St. B. 3. T. 2. § 48.

49. Adjudications contra hæreditatem jacentem are, by 1621, C. 7, declared redeemable by any posterior co-adjudging creditor, either of the deceased debtor, or of the heir renouncing, on payment of the debt due to the first adjudger, within the term of seven years from the date of the adjudication, which was then the legal also of apprisings. This right of redemption was granted to co-adjudgers, from a consideration of the loss sustained by creditors, who, by the first adjudger's diligence against the hæreditas jacens, were excluded from the whole of the estate belonging to their deceased debtor, though they were creditors equally onerous with him. And it was from the same equitable consideration, that the act 1661, which establishes the pari passu preference of apprisings within year and day, did expressly extend that preference to adjudications for debt; by which nothing can be meant but adjudications contra hæreditatem jacentem; for at that time no other adjudications were known in our law, except adjudications in implement; and these are led, not for the payment of debt, but for the performance of a fact.

* The court likewise found, July 23. 1760, Anderson and others, claimants on Strowan, (not reported), that an adjudication on a special charge carried the interest of an heritable bond from the death of the predecessor last infeft. At the same time it will be observed, that these decisions were prior to the judgment of the House of Peers, in the case of Hamilton of Rosehall, April 8. 1767, DICT. p. 5257, finding unuplifted rents to belong to the apparent heir 362. Vide infra, B. iii. t. 8. § 58.

361 Reported by Kilk. v. ADJUDICATION AND APPRISING, No. 7., (inserted in the supplemental vol. to Morison's DICT.) and by Elchies, v. ADJUDICATION, No. 24.

362 This case does not touch the doctrine laid down in the text. It was a competition between the heir and executor of one, who, instead of renouncing the ancestor's succession, (the only case wherein adjudication on a decree cognitionis causa can occur), had actually entered into possession, but had died in apparency. The Court of Session held, that in such circumstances, the arrears of rent belonged to the heir; but the House of Lords, on a sounder view, reversed this judgment and preferred the executor. This result is nowise incompatible with the position, that where the apparent heir does not enter to possession, but on the contrary repudiates and "renounces all "benefit which might accrue to him by the succession," adjudication will carry to the ancestor's creditor all arrears due at or since the death of his debtor. The only situation where the case of Hamilton can interfere, is where a competition may happen to arise between the creditors of the ancestor adjudging the hæreditas jacens and the creditors of a deceased apparent heir, who has been in possession, attaching the arrears as part of their debtor's moveable estate; and it would here seem that the creditors of the heir would be preferable. Vid. 2. Bell Comm. 5. & 15.; Ibid. 1. 64.

fact. It was made a doubt before the act 1621, whether the heir himself who had renounced, might not, in special cases, be restored against his renunciation, and consequently redeem adjudications deduced against the estate of the ancestor. Craig inclines to think, Lib. 3. Dieg. 2. § 24., that even a major, though he had renounced, might have redeemed within the legal, if no person was hurt by his being restored; but this question was soon after resolved in the negative, by the aforesaid act 1621, in which it is taken for granted that minors may be restored; but no such right is either expressed or implied in the act as competent to majors; and subsequent practice hath so explained it, Stair, Jan. 27. 1680, Macaulay, (DICT. p. 45. 363.) Yet custom hath established an indirect method, by which majors also may redeem after renunciation, viz. by granting a trust-bond for a sum amounting to the full value of the ancestor's estate, upon which the trustee charges the heir who grants it to enter in special, and afterwards adjudges in common form. The conveyance of this adjudication in favour of the heir, entitles him not only to redeem prior adjudications, but also to set them aside upon nullities, or to prove that they have been satisfied by intromissions. But the using such conveyance subjects the heir to a passive title; vid. supr. § 34.

pro

50. Adjudications in implement are deduced against those who have granted dispositions, without procuratory of resignation or precept of seisin, and refuse to divest themselves; to the end that the subjects disponed may by that diligence be effectually vested in the grantees: and they are called in implement, because their purpose is, to implement or give full force to the granter's imperfect deeds. The disponee could not, by our more ancient practice, adjudge in implement, till he had used diligence against the granter by decree, and registered horning; because such adjudication, being an extraordinary remedy, introduced by necessity without the authority of a statute, was not admitted till all other means had ved ineffectual, Newbyth, Feb. 8. 1666, Cruickshanks, (DICT. p. 52.); but by our later customs it may be led without any such previous steps. This kind of adjudication may be directed either against the granter himself or his heir. Where it was pointed against the heir, there was formerly no necessity to charge him to enter, St. B. 3. T.2. § 53. ; because the disponee does not, in such case, insist against the heir, to make him personally liable in any sum, but barely to make effectual a special deed granted by the ancestor; yet by the present practice, the granter's heir must be previously charged to enter. If the heir shall, in the action brought against him upon that charge, renounce his claim to the debtor's succession, the pursuer is to prosecute the same method which is prescribed in an adjudication for debt.

51. In an adjudication in implement, there is no place for a legal reversion, or a right to redeem within a certain time; for it is led, not for the payment of a debt, but to give full effect to an imperfect grant made voluntarily in favour of the adjudger. It therefore carries from the granter the subject disponed absolutely and irredeemably, in the same manner as if the disposition had been voluntarily perfected by the granter himself; and so leaves no room for any reversion, unless a reversion had been stipulated in the deed, for

VOL. I.

7 E

363 1. Bell Comm. 609. Although the heir who renounces is himself precluded from redeeming, the next heir after him may take up the succession, and redeem it any time before decree of declarator of expiry of the legal; Stewart, 7th Dec. 1809, Fac. Coll.; Bankton, B. §. t. 2. § 81. See also Stair and Newbyth, 17th Jan. 1666, Crawford, DICT. p. 6871.

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Book II.

Some particulars common to

these two last species of adjudications.

for the fulfilling of which the adjudication is led; in which case the conventional reversion must subsist, as being an original condition of the right. On the same principle, the retractus feudalis, or option competent to the superior to redeem, upon payment of the debt, to the value of the lands, can have no place in these adjudications. This is also peculiar to them, that no adjudication of any other kind can be preferred pari passu with them, nor they with others, St. ibid.; for though the act 1661, relative to the pari passu preference of apprisings, is, by a special clause, extended to adjudications for debt, or, as has been already explained, to adjudications upon decrees cognitionis causa; yet adjudications in implement cannot fall under that appellation; and indeed this last sort, being led for one special purpose, and affecting one special subject, appears not to have come within the view of the legislature. It has, however, been found, that in a competition between two adjudgers in implement, where both the parties were in pari casu, the last in date was preferred, because he had given the first charge to the superior, Dalr. 49, (Sinclair against Sinclair, June 21. 1704, DICT. p. 56.)

The act

52. This account of the two adjudications after the old form, may be concluded with some observations common to both. 1469, C. 37., which obliged superiors to enter apprisers, could not, by the just rules of interpretation, be applied against adjudgers after the old form; because the statute itself confines the enactment to apprisings, and so ought not to include adjudications, which are a distinct sort of diligence: and, besides, it may be doubted, whether adjudications in implement were known in our law so early as the year 1469. There appears indeed the same reason in the nature of things, why superiors should be entitled to a year's rent for the entry of adjudgers against the hæreditas jacens, as of apprisers, because both these are diligences for the payment or security of debt. Nothing, however, is said of the year's rent due to the superior by an adjudger contra hæreditatem jacentem, in the act 1621, C. 7., which particularly relates to that subject, though the statute immediately preceding, which concerns apprisings, plainly supposes him entitled to it upon the entry of an appriser: As therefore there was reason to think the legislature had purposely avoided to mention adjudgers, the court would not assume a power of extending the superior's right against them, St. B. 3. T. 2. § 49. But now, by 1669, C. 18., it is declared, without insinuating the smallest distinction between adjudgers in implement, and contra hæreditatem jacentem, That all adjudications shall for the future be in a like condition with apprisings, as to the superior; and consequently, superiors seem, since that act, to be under an obligation to enter both, and to be entitled to the composition of a year's rent from both upon their entry 363. It may be doubted, however, whether the superior would, at this day, be compelled to enter an adjudger in implement, who could not instruct his author's right, though he would, in such case, be obliged to enter an adjudger for debt. The ground of the superior's obligation in the last case, is by no means applicable to the first. An adjudger in implement is presumed to have received from the granter of the deed, who is a voluntary disponer, the title-deeds of the subject disponed along with the grant; whereas an adjudger for a liquid sum, as he leads his diligence without

363 Where the adjudication contra hæreditatem jacentem is led before the Sheriff, without an abbreviate, it would seem that an entry cannot be forced from the superior; Kilkerran, King, 14th Dec. 1742, DICT. p. 5744. Reported also by Clerk Home, DICT. p. 5743, Kames, Rem. Decis. DICT. p. 8135, and Elchies, v. ADJUDICATION, No. 35. See also 1. Bell Comm. 627.; A. S. 2d Dec. 1742; infr. § 54.

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