Subject_1 ANNUALRENT. Subject_2 ANNUALRENT due by those who are lucrati, as having had the use of money belonging to others.
Stirling v. Paunter
Date: 8 March 1627 Case No. No 82.
The purchaser of lands, was allowed his option, when the seller was in mora, either to pay annualrent to the seller, or to account to him for the rents.
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In an action for mails and duties, at the instance of Stirling against Paunter, the defender cloathing himself with an infeftment of the lands, whereof the duties were acclaimed, proceeding from Mr David Ogilvie who had bought the lands, and who was found to be debtor of the said mails, for not paying of the price which he was obliged to pay, and which he retained unpaid, because certain deeds were not fulfilled to him; and, nevertheless, because the Lords found, that it was not equitable, that he should both keep the money and pay no profit thereof, and also uplift the duties of the lands; therefore the Lords, by their decreet found, that he should pay to the pursuer who had acquired the annailzier's right in his person, either the profit of the principal money retained, or else the profit of the lands, wherein the said Mr David having his option, and having chused to be debtor in the mails of the lands, and so decreet being given against him for payment thereof: This pursuit, upon that decreet, was intented against this defender, as possessor of the saids lands, by right from the said Mr David, to pay the saids mails to the pursuer; wherein the defender alleging, That he was heritably infeft in the same, by the said Mr David, before that sentence; so that the personal sentence against the said Mr David could not make him subject to pay the saids duties: And the pursuer replying, That that decreet given upon a real cause, albeit personally against the said Mr David, ought to work for the pursuer against all possessors, by any right from the said Mr David; especially seeing the said Mr David was his debtor before the right made to the defender; and before the said right he had served inhibition against the said Mr David; likeas he was at the horn the time of the making of the said right, which was simulately made by him, being father-in-law to the defender, who had married his daughter; and so in respect of the act of Parliament against bankrupts, ought not to be respected against the pursuer: Notwithstanding of the which reply, the exception was found relevant, seeing the infeftment alleged by the defender could not be taken away hoc ordine, without prejudice to reduce thereupon; for albeit he was at the horn, yet he might fell his land; but I think not to the prejudice of his creditors. (See Personal and Real.)
Act. Hope & Nicolson.Alt. Haliburton & Stuart.Clerk, Gibson.
Fol. Dic. v. 1. p. 42. Durie, p. 286.
