A second disposition first completed by base infeftment and possession, preferred to a prior disposition, containing procuratory of resignation, on which sasine was taken soon after the base infeftment.
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One having, by contract, heritably disponed his lands to ———, and resigned the same in his favours, thereafter he dispones the same to another, who, after the procuratory of resignation, and before the sasine taken by the first buyer, takes sasine, before the taking of sasine by him who acquired the first alienation; and by virtue of his first sasine, he who acquired the second right becomes in possession of the lands; this right being granted to be holden of the annailzier, and the other right being public upon resignation, as said is, to be holden of the superior. This first acquirer being last seased, albeit by a public infeftment, as said is, pursues the other who was first seased and in possession, by virtue of his right to be holden of the annailzier, for removing, wherein the Lords admitted the exception, founded upon the defender's first sasine, cled with possession; albeit the pursuer replied, That his contract and procuratory of resignation was before the defender's right, and that his sasine, albeit a short space after the excipient's sasine, (for they were both in one year,) ought to be drawn back to his preceding procuratory of resignation, and the possession ought not to be respected, seeing it was but a year past since the first of their rights was made, and there were few weeks betwixt the dates of their sasines; notwithstanding of the which reply, the exception was sustained, founded upon the said prior sasine and possession, albeit the other was public, and so little distance of time betwixt them, and so short possession.
Act. ——.Alt. Lawtie.Clerk, Gibson.
Fol. Dic. v. 1. p. 469. Durie, p. 225
