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Scottish Court of Session Decisions >>
Sinclair of Southstone v Sinclair of Stanestone. [1685] Mor 5324 (00 January 1685)
URL: http://www.bailii.org/scot/cases/ScotCS/1685/Mor1305324-062.html Cite as:
[1685] Mor 5324
Found in conformity with Burnet against Naysmith, No 48. p. 5302. that an apprising purchased by an apparent heir during his father's life was redeemable by creditors.
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An apparent heir, who acquired an apprising in his father's lifetime, being pursued upon the act of Parliament, in a declarator of redemption within ten years after it came in his person, it was alleged for the defender, 1mo, The apprising could not be redeemed till after his father's death. 2do, The right of apprising being acquired ex dono, it fell not under the act of Parliament; both which allegeances the Lords repelled.
It was further alleged against the apprising, That it did not extend to some lands, being restricted by Mr William Dundas Advocate, who stood in the right of the apprising, before it came in the apparent heir's person.
Answered; That such a restriction being only personal, it cannot prejudge a singular successor in the real right.
‘The Lords found, that if infeftment had followed upon the apprising, before restriction, the restriction was but personal; but if it preceded infeftment, it did affect and regulate the apprising against the singular successor; because, till infeftment, the apprising was transmissible by assignation.’ It was controverted among the Lords, if a charge against the superior, or the expiring of the apprising before restriction, had the same effect as an infeftment, seeing these could not be a title of removing. See Personal and Real.
Fol. Dic. v. 1. p. 359. Harcarse, (Comprisings.) No 310. p. 76.
