An infeftment for relief of cautionry becomes perfect, if the failzie be committed, and it being first confirmed, it will prevail against an anterior infeftment confirmed thereafter.
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The Laird of Parbroath, in anno 1608, disponed heritably the lands Gillets, &c. to be holden of the Queen. Shortly thereafter Parbroath, by contract, bound himself to infeft Pitferran in the saids lands, for his surety and relief of 3300 merks, for the which he was cautioner for Parbroath to Bogie, conform to a contract passed betwixt them thereanent; and that Pitferran would have full right and possession of the said lands at the feast of Whitsunday 1609, in case he was not relieved of his contract and cautionry before that said term; and should thereafter bruik and possess the lands, ay and while he was relieved by payment to Bogie. Which contract, betwixt Parboath and Pitferran, contained a precept of sasine of the said lands to be holden feu of the Queen, whereupon Pitferran took sasine of the lands, and obtained his contract and sasine confirmed by the Queen in anno 1608 or 1609. At Whitsunday 1609, Pitferran being charged with horning by Bogie, and not relieved by Parbroath, was forced to satisfy Bogie by new security. And, at Whitsunday 1610, Pitferran is relieved by payment to him of the principal sum; and, in that same year 1610, Robert Gray's infeftment of the Gillets is confirmed by the Queen; and, because Pitferran paying Bogie at Whitsunday 1609, and not being relieved till Whitsunday 1610, a question arises in a double poinding, raised by the tenants against Pitferran and Robert Gray, both pretending right to the farms anno 1609. Robert Gray alleged he should be preferred, became he was infeft and in possession, and that Pitferran could have no right, his infeftment being only an infeftment of warrandice depending upon a distress, and not relief, whereupon no declarator was obtained thereupon; next, Robert Gray's sasine was anterior to his adversary's. It was answered, That his infeftment, which was conditional in the beginning, was purified and made absolute by the failzie committed by Parbroath in not relieving of him at Whitsunday 1609, at which time his infeftment became prior and perfect. And albeit Robert Gray's sasine was anterior to his, yet both their infeftments being granted to be holden of the superior, and Pitferran's, being first confirmed, was most perfect, and that no impediment stayed that Robert Gray's confirmation could not be drawn back to his sasine. At last, Robert alleged, that Pitferran could pretend no farther interest but his not relieving of the sum for a year, seeing he was relieved at Whitsunday 1610 of the sum which should have been paid at Whitsunday 1609, and so his interest being only the profit of 3300 merks for one year, he was content to refund to him the said interest cum omni causa. Pitferran answered, That his infeftment not being an annualrent, but proper wadset of the lands, he would not alter his security and enter in paction. In respect whereof, the Lords found Pitferran's allegeance relevant. Thereafter Robert Gray alleged, That Pitferran could have no right, because albeit he was not relieved at the day appointed, yet he was not distressed, at least he had not made payment for his own relief and Parbroath's. Pitferran answered, and offered to prove, That he, being charged by Bogie, was forced to make him new security, and took an assignation to his brother. It was replied, That the assignation kept the debt above Parbroath's head, and so he was not relieved, and consequently Pitferran could not claim his infeftment. Notwithstanding whereof the Lords sustained Pitferran's allegeance, he reporting a sufficient discharge from Bogie, and from Pitferran's brother to Parbroath.
