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In an action of poinding of the ground, at the L. Clackmannan's instance, against L. Balnamoon, an exception being proponed for Arbuthnot of Findoury, upon an infeftment of an annualrent, out of the lands libelled, by virtue whereof, he was year and day in possession of the said annualrent, out of the lands contained in his infeftment; whereby he alleged, That the lands could not be poinded at the pursuer's instance, for the pursuer's annualrent, but with reservation of this excipient's right. This exception was found relevant, notwithstanding of the reply, That the pursuer alleged, that his infeftment was prior to the excipient's, by the space of an year, and both the said infeftments being base, his priority behoved to give him preference: Likeas he alleged, that his right was not only prior, but was also in effect made public, by confirming of the same by the King's Majesty, and registration of his sasine thereof in the public registers; which confirmation, albeit the infeftment was granted to be holden base of the giver, with the registration foresaid of the sasine, being insert in public registers made the obscurity of his right to cease: Likeas he was in possession by receiving of a term's annualrent, from the giver of the infeftment, before the excipient; all which was repelled, seeing he was not year and day in possession before the excipient's right and possession; likeas the Lords found the said confirmation and registration, made it not public, the holding being base.
Act. Hope.Alt. Gibson.Clerk, Hay.
Fol Dic. v. 1. p. 89. Durie, p. 335.
