A base infeftment of property, clothed with possession, preferred to a base infeftment of annualrent, though confirmed by the King, before possession was obtained upon the former. The confirmation to be holden of the granter only, not of, the superior could not make it public.
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In an action for poinding of the ground for an annualrent disponed out of the same, at the instance of the Laird of Clackmannan and Burn, the Lords preferred an infeftment of the property alleged on by the defender compearing in this cause, albeit granted by a base holding of the giver thereof; as the pursuer's infeftment of annualrent was also granted to be holden of the granter; both the infeftments proceeding from one author, viz. L. Balnamoon; to the pursuer's infeftment of the said annualrent, which was posterior to the excipient's infeftment of the property; seeing the said prior infeftment of the property was clad with possession; neither was the reply sustained, whereby the pursuer alleged, that albeit his infeftment of annualrent was posterior, yet seeing it was confirmed by the King's Majesty, who was superior of the lands, before ever the infeftment of the property was clad with possession, and before any confirmation, therefore he ought to be preferred, his right foresaid becoming public by the confirmation, which confirmation preceded any possession acquired by the defender of the property; which reply was not respected, but the first infeftment preferred, albeit not clad with possession before the pursuer's confirmation, being not the less clad with possession at any time when the pursuer had no possession; and albeit the defender's infeftment was not confirmed, yet it was preferred to the posterior infeftment of the annualrent confirmed before the defender's possession; and the Lords found, that the confirmation made not the pursuer's infeftment public, seeing it was granted to be holden of the giver's self, and not of the superior.
Act. Hope.Alt. Aiton & Nairn.Clerk, Hay.
Fol. Dic. v. 1. 88. Durie, p. 314.
