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Scottish Court of Session Decisions >>
Robert Graham v John Ross. [1663] Mor 237 (24 January 1663)
URL: http://www.bailii.org/scot/cases/ScotCS/1663/Mor0100237-008.html Cite as:
[1663] Mor 237
Subject_1 ADJUDICATION and APPRISING. Subject_2 RANKING of ADJUDGERS and APPRISERS.
Robert Graham v. John Ross
Date: 24 January 1663 Case No. No 8.
The contrary seems to have been found.
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In a competition betwixt Graham and Ross, and a third party, all comprisers, the posterior apprisers craving to come in pari passu, by virtue of the late act of Parliament:—It was alleged for Graham, who had obtained infeftment, That he ought to be preferred; because, albeit his apprising was since January 1652, yet he had been in possession thereby seven years, and so had the benefit of a possessory judgment.
This was repelled, because the act of Parliament was but late, before which there could be no ground to come in pari passu; and there was no exception in it, of those who had possessed or not possessed, before the act.
2do, Graham further alleged, That he ought to be preferred; because he was infeft in an annualrent out of the lands, which is a real right excepted by the act of Parliament. 3tio, That Ross could not come in, because Ross's apprising was before 1652; and the act of Parliament brings in only apprisings since December 1652. 4to, None of the parties could come in with him, until first they paid him their proportionable part of the composition, and expences bestowed out by him, conform to the act.
The Lords found, That albeit Graham's apprising was not upon the infeftment of annualrent, but upon the personal obligement for the principal, and bygone annualrents, upon requisitions, which was a passing from the infeftment of annualrent; yet that he might, pro loco et tempore, pass from his apprising, and might be preferred to his bygone annualrents, upon his infeftment of annualrent, in this case of composition, albeit there was yet no apprising upon the infeftment of annualrent; and found, That John Ross's apprising before 1652, was not excluded, but behoved to be in the same case, as if it had been after: But found, That the other apprisers, before they came in, behoved to satisfy the composition proportionally by the tenor of the act. (See Right in Security.)
