Found, that a base infeftment is clothed with possession by payment of annualrent to the creditor, although not out of the lands affected, nor by the tenants, but personally by the granter.
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In an action of poinding of the ground for an annualrent, at the instance of James Winrham in Edinburgh, against Cranston of Moriston, who defended himself with a public infeftment of the said lands, out of which the pursuer's annualrent was granted, to be uplifted, and possession of the said lands, conform to the said heritable public right:——The Lords, nevertheless, sustained the pursuer's base sasine of the annualrent, seeing he offered to prove fortification thereof, that the granter of his said infeftment had made payment to him of the paid annualrent diverse years; which payment, so made by the annailziar, albeit not alleged to be paid out of the lands which were affected with the annualrent, not yet alleged to be paid by the tenants and labourers of the ground, but only alleged to be personally paid by him, who granted the said infeftment of annualrent; the Lords sustained it, as a sufficient possession of the said annualrent, to authorise the foresaid right, in respect whereof, the same should be preferred to the said defender's public right foresaid; seeing thereby the Lords found, That the said pursuer's right was clad with sufficient possession, (the same being proven as said is) and therefore could not be excluded by the said excipient's right.
Act. Belshes.Alt. Craig.Clerk, Gibson.
Fol. Dic. v. 1. p. 89. Durie, p. 220.
* This case is, by mistake, in Fol. Dic. called Lady Glengarnock against L. Kilbirnie; a case on the same page of Durie, which will be found, voce Possessory Judgement.
