Scottish Court of Session Decisions

Subject_1 ADJUDICATION and APPRISING.
Subject_2 ADJUDICATION in SECURITY.

Creditors of Sir Thomas Wallace-Dunlop,
v.
Messrs Brown and Collinson, Bankers in London

Date: 14 November 1781
Case No. No 4.

Adjudication decreed, in security of contingent claims.

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Sir Thomas Wallace sold a part of his lands to Messrs Brown and Collinson, at twenty-nine years purchase, according to a signed rental; which Sir Thomas became bound to warrant for twenty seven years.

Upon this obligation of warrandice, Messrs Brown and Collinson led an adjudication in security against Sir Thomas's other lands and estates; to which, in the ranking of Sir Thomas's creditors, it was

Objected by the creditors: No illiquid debt can be secured by adjudication; Erskine, b. 2. tit. 12. § 9.; Stair, b. 3. tit. 2. § 15. An adjudication in security is of that sort which has come in place of apprisings; with this difference only, that the legal never expires. It is, therefore, properly a sale under a perpetual power of redemption; but still it is a sale; and as such requires a liquid price. The adjudication in question, however, is founded on as a security, not only for the deficiencies alleged to have been already incurred, and which have not been liquidated by any decree, but also for deficiencies, which do not now, and may never exist.

Answered by the adjudgers: It is admitted, that an adjudication for payment cannot proceed, except upon a liquid debt. But this rule does not hold with respect to adjudications security. And the reason of the distinction is obvious. By the old form of apprisings, as much of the debtor's heritage was given to the creditor as was reckoned equivalent to his debt; and unless the debt was liquid, the sheriff could not possibly determine what quantity of lands it was proper to make over. The same reason holds in special adjudications upon the first alternative of the act 1672: and, even in general adjudications for payment, it is necessary that the, debt should be liquid, in order that the debtor may know the precise amount of the redemption-money.

But these reasons do not apply to adjudications in security: for though they are always general, and extend to the debtor's whole heritage; yet, as the legal never expires, the property can never be thereby transferred to the adjudger. Neither is it here necessary, that the debtor should know the precise amount of the debt; became he may at any time recover his lands, upon shewing that the creditor has been fully satisfied.

Accordingly, this sort of adjudication has ever been considered as a competent way of affecting the debtor's heritage, in security of such debts as can only be liquidated, de anno in annum, or of such as cannot properly be the foundation of an adjudication for payment. Thus, a widow may adjudge in security of her liferent; a cautioner in security of his relies; and a purchaser in security of his warrandice; Bankton, b. 3. tit. 2. § 78.; Hamilton against Chiesly, 24th February 1675; (See Adjudication in Implement) Bruce against Hepburn, 2d January 1684, observed by Fountainhall and Falconer, (No 1. h. t.) These several claims are not more liquid than the present. Like it they are contingent on future events; but they are all equally capable of being secured by adjudication.

The Court had no difficulty upon the competency of the adjudication, as a security for both the past and the future deficiencies; and therefore “repelled the objection.”

Lord Reporter, Westhall. For the Objectors, J. Swinton. Alt. Robertson. Clerk, Ormet. Fol. Dic. v. 3. p. 2. Fac. Col. No 1. p. 1.