Base Infeftments are preferred to one another, and to Public Ones, according to date, if steps have been taken, sine mora, to attain Possession.
L Garthland v. Lo Jedburgh.
Date: 2 March 1631 Case No. No 6.
A base infeftment was preferred to a public one, where neither party was in possession, the base being in implement of a prior obligation, although gratuitous, upon which inhibition had been used.
Click here to view a pdf copy of this documet : PDF Copy
In this cause, of which one branch is reported No 45. p. 915. and another voce Legal Diligence, the L. of Garthland craved the tenants to be decerned to pay him his back tack-duty. Compeared Sir James Ker, who being cautioner for the Lord Jedburgh, author of the pursuer's infeftment, was, for his relief and security of the sums which he had paid as cautioner, infeft in the same lands by the Lord Jedburgh, by a public infeftment, and alleged, That the pursuer's infeftment granted to him, was not public, but base; and therefore contended that he ought to be preferred to the pursuer, ay and while these sums were paid to the excipient; especially seeing the pursuer's infeftment was granted to him ex mera donatione, without any onerous cause, and could not be respected against the right, made to the defender, a lawful creditor, and for a most onerous cause of debt; the pursuer being son-in-law to the granter of his right, and granted to his son in fee, who is oye to the granter, and so most conjunct persons; and done voluntarily, et sine causa, in prejudice of the excipient, a true creditor, at the time of the purchasing of the pursuer's right, who he could not prejudge by any voluntary deed, done gratuitously to his own oye, for love and favour.——The Lords repelled the allegeance, and sustained the pursuer's infeftment, albeit base; and albeit the defender's was a public right, and albeit it was done inter personas conjunctas, and without a cause onerous, (for none of the parties were in possession of the lands, but now were disputing their rights,) seeing the same was done for implement of a bond before the defender's infeftment granted to him by the Lo. Jedburgh, and whereupon he had served inhibition before the defender's infeftment; so that this bond and inhibition preceding, was a sufficient warrant to prefer that infeftment depending thereon to the excipient's right, acquired after that inhibition, albeit the same was public, and the pursuer's base, and albeit the same was done without an onerous cause; yet it was sustained, and preferred to the other infeftment excepted on, given to the creditor ex causa onerosa, seeing, at the time of the granting thereof to the pursuer, the granter was not then, nor yet is bankrupt, neither was then unanswerable to pay any debt owing by him; so albeit that then, and at the time of the pursuer's bond foresaid, the defender was his creditor, yet the donation voluntarily made by the Lord Jedburgh the debtor, might validly and lawfully have been made; and cannot be quarrelled upon that ground by the creditor, he having done no deed by inhibition, to prohibit the said infeftment, and donation, and bond, albeit done for love and favour.
Act. Neilson.Alt. Sandilands.Clerk, Gibson.
Durie, p. 575.
