Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR ROGER HOG OF HARCARSE.

Mary Bruce
v.
Sir Patrick Hepburn

1684. January.

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Mary Bruce, relict of John M'Pherson, having, after his decease, adjudged certain sums of money belonging to him, for satisfaction of bygone and future annuities during her lifetime, of £10,000, which the defunct was obliged, in his contract of marriage, to employ upon land or annual-rent, to him or her, the longest liver; and had not performed it;—this adjudication was quarrelled by Patrick Hepburn, another adjudger, within year and day, upon this ground, That she had not liquidated the terms to come to a certain sum at the rate of so many years; which is a nullity; because, 1. A creditor can no more adjudge or apprise for future annuities, than he can poind them; 2. There is no total sum qualified, upon which the adjudication is redeemable; 3. Such an adjudication could not expire in ten years. Answered for the adjudger, The foresaid arguments take only place where the ground of an adjudication is obligatio dandi by payment, and not where it is obligatio ad factum, præstandum, as this is; and here the obligement, in the contract, to settle a sum in favours of the wife, betwixt and such a day, became prestable in totum after elapsing of the day, although the particular payments fall to be due at the several terms of her life, and these could not be valued estimate to a liquid sum, it being uncertain how long she would live; and it were unreasonable that other creditors should carry away all, in the case of her surviving the years of the modification. It were also a defect in law, to find no diligence equal to the performance of a debtor's obligement; and in this case the adjudication of the property of the sum, or of an annual-rent effeiring to £10,000 out of it, is but in effect a real security, and always redeemable upon securing the adjudger by infeftment, conform to the obligement in her contract of marriage. Again, an adjudication of lands upon an obligement to dispone the same, is not redeemable by payment of money, seeing the lands in special are in obligatione, which could not be fulfilled per equipollens; and, as there may be arrestment declaratorie, before the term of payment in moveables, so there may be an adjudication; which is not execution, but only a diligence. The Lords found the answer relevant, and sustained the adjudication as formal.

Thereafter it was contended for the relict, That the other posterior diligences, though within year and day, could not come in pari passu with her adjudication, whereof the ground is an obligement to infeft, and not to pay: and not liquid to a particular sum before the leading of it; and, consequently, falls not under the Act of Parliament, which seems only to respect diligences for liquid sums, which may be proportioned in a competition;—December 12, 1677, the Lady Frazer against the Creditors of the Lord Frazer and the Lady Marr. Answered, The reason of the Act of Parliament militates equally in all cases; and the interest of this adjudger may receive an estimation in a competition with other diligences. The cited practique seems not to be well founded: besides, there is this difference between the two cases, that the obligement, to the Lady Frazer, was to infeft her in particular lands in lieu of others renounced by her, which stated her in the case of one having a special disposition; whereas the obligement here is but to employ a sum in general. The Lords allowed the other diligences within the year, to come in pari passu.

Page 92, No. 360.