Base Infeftments are preferred to one another, and to Public Ones, according to date, if steps have been taken, sine mora, to attain Possession.
L Raploch v. Tenants
Date: 2 July 1625 Case No. No 5.
In a competition between an annualrenter and a feuer, where both infeftments were base; the one, whose infeftment was prior in date was preferred, having done diligence sine mora, although the other first attained possession.
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An action was pursued at the instance of the good-man of Raploch against the tenants of Letham, for poinding of the ground, in satisfaction of an annualrent, disponed out of the lands, by Hamilton of Letham, heritor of the lands, under reversion of a certain sum of money addebted to Raploch by Letham; after the which infeftment of the pursuers, the defenders had acquired a feu of the same lands, which the Lords finding not to be sufficient to exclude the pursuer's right and action, because they being both base infeftments, the pursuer's being anterior was preferred; neither was the defenders right respected, albeit they alleged, That the same was clad with possession, and that the pursuer's right, although prior some days to their right, yet not having possession, ought not to be preferred to give him action to poind the lands feued to them, whereof they had real possession, further than for the feu-duty contained in their charters. Which allegeance was repelled, in respect that the pursuer's right was prior, and that he had done all lawful diligence which was requisite to obtain possession, by intenting action to poind the ground, after the first term was bypast, subsequent to his infeftment; for there is no action to poind the ground, while a term's duty be owing, and the term bypast; for before the term be bypast and bygone, he could not have any action; and the defenders being tenants of the ground, and so continuing possessors thereof, as they were many years before, their possession cannot be ascribed to their infeftment of feu, to derogate any thing from the pursuer's prior right and diligence foresaid. Thereafter the defenders alleging, That the pursuer had accepted a posterior right from Letham of the same lands, whereout the foresaid annualrent was first disponed, there being many more lands both in his first and second rights, beside these lands feued to the excipients, after his first right foresaid, and after the defenders feu, whereby the lands were disponed by Letham to him under reversion, granted back again to Letham, containing a greater sum than that whereupon the infeftment of the annualrent was redeemable; in the which greater sum, whereupon the last reversion foresaid was granted, the sum contained in the first security, for the which the annualrent is now acclaimed, was expressly comprehended, and was a part thereof; by the which last security the first sum was in effect satisfied to the pursuer, and the first security was absorbed; and consequently the pursuer could not return and desire to poind the excipient's lands by virtue thereof. This allegeance was found relevant to assoilzie these defenders; for the Lords found, That by the acceptation of this posterior security by the pursuer, viz by the making of a contract, perfected betwixt Letham and him thereupon, and subscribed by them, and delivered to the pursuer, with a charter conform thereto, albeit he was not seised, which he might be when he pleased, in the which last security the first sum as compted, the pursuer could not mis-know to the same, and return to poind for the annualrent of the first security, so long as the last contract stood and remained in its own force; especially seeing, in this last security, the pursuer had acknowledged that the excepient's lands were disponed to them in feu before, and had therein obliged him to procure the renunciations of their rights, and to deliver them to Letham at the time of the redemption of the lands; and so the Lords found, That the posterior security, wherein the sum is comprehended, whereupon the first was granted, absorbed the first, that he could not return thereto, so long as the last stands; albeit it was alleged, that the last was not effectual, because, before the same, all the lands were overburdened with prior wadsets, which exhausted all the profits and rent of the land. See Virtual. See Prescription.
Act. Nicolson.Alt. Hope.Clerk, Gibson.
Fol. Dic. v. 1. p. 87. Durie, p. 169.
