Scottish Court of Session Decisions

Subject_1 ADJUDICATION and APPRISING.
Subject_2 ADJUDICATIONS and APPRISING pass periculo petentis; and all Defences are reserved contra executionem, unless instantly verified.

Gordon
v.
Forbesses

Date: 7 February 1699
Case No. No 9.

In adjudication of bonds by apparent heirs, where no notoriety of their predecessor's right, and no competition of creditors, adjudication will not pass without some evidence.

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Mersington, reported Gordon of Inverebrie, against Forbesses of Ballogie, Tulloch, and Balflug. Tulloch, as apparent heir to his grand-father, in the lands of Corsinday, and others, grants a bond for 18,000 merks to, who, thereupon charging him to enter heir, and obtaining a decreet cognitionis causa, raises an adjudication. Compearance is made for Ballogie and others, now proprietors, who repeat a declarator they had raised, that the lands have pertained immemorialy to them; and they deny his goodsire had ever any right thereto, or that he is the nearest in blood; else any man, on his own bond, may cause charge himself to enter to some of his predecessors, in lands they never had right or claim to, and thereupon raise improbation against the just possessors, open their charter chests, propale their papers, and vex all the country.—Answered, Adjudications are judicia summaria, and ought not to be stopt on alledgeances that require probation; but the form is, to decern, and reserve all these defences contra executionem in the mails and duties, as may be seen, 15th November 1666, Chein, (No 7. h. t.); 13th January 1672, Master of Salton, (See Heir Portioner); 22d July 1664, Livingston, (No 6. h. t.); and lately a defence of prescription, (which is the very case in hand,) was repelled betwixt Thomson and Archibald.—Replied, 'Tis very true, the Lords will not stop adjudications on every allegeance, where the pursuer is a true creditor, and the apparent heir's contingency in blood is notour, and there is a general same that land once belonged to their family; but where none of these appear, and where there is no striving for diligence, but 'tis the first adjudication, and so no periculum in mora, the Lords will not easily pass such adjudications; and my Lord Stair, part 2. tit. 2. thinks, in such cases, some evidence should be given of the interest in the land.——The Lords found, Where adjudications are sought on apparent heirs bonds, and there is no notoriety of their predecessors having been heritors of that land, and that there is no concourse of creditors striving for diligence, there ought to be no decreet of adjudication, till they give some document that they once had right to the land craved to be adjudged, by a sasine, or some other evident, and that he had a contingency in blood. (See Improbation.)

Fol. Dic. v. 1. p. 12. Fount. v. 2. p. 41.