Base Infeftments are preferred to one another, and to Public Ones, according to date, if steps have been taken, sine mora, to attain Possession.
Gordon v. M'Queen
Date: 22 January 1633 Case No. No 7.
A person was infeft in lands by base infeftment redeemable. He let the lands to his author by back-tack, for a money-rent, of which he received payment some years. His author sold the lands to another irredeemably. The creditor in the base right demanded no rent from the purchaser of several years. His right, notwithstanding, found good and entire.
Click here to view a pdf copy of this documet : PDF Copy
One being infeft in lands by, a base infeftment redeemable, to be holden of the granter; and having set a back-tack to his author of the said lands, for payment of a silver tack-duty, answerable to the annualrent of the money, whereupon the land was wadset; of the which silver duty he had received payment diverse years since the date of this wadset; and thereafter, the defender having acquired the heritable irredeemable alienation of these lands, from the same author to the pursuer, by a public infeftment, holden of the superior; and by virtue thereof, being ten or twelve years last bypast in actual possession of the land, the pursuer never claiming right thereto all this time, neither by virtue of the heritable wadset, nor by the sub-tack, but being still silent, and these rights being obscure and unknown to the defender, who acquired the lands from the heritor, being then possessor: It was found in an action pursued by the pursuer, upon his foresaid heritable base right, for payment of the mails and duties of the lands, of all the bygone years preceding this year 1632, viz. by the space of 12 or 14 years bypast, and sicklike in time coming; and which pursuit he retrenched to the said back tack-duty; that the said pursuer ought to be paid of the same by the defender, who was possessor and heritor all these years, not only in time to come yearly, but also of all these said bygone years; albeit the pursuer's right was but base, and that the defender's right was public, and clad with so long possession; and albeit, the pursuer had been so long out of possession, and had never done diligence all that time, to recover payment of his back tack-duty; seeing his right was once clothed with possession : Which the Lords found, gave him preference to the posterior public right for bygones, as well although they had been owing these 20 or 30 years bygone, as for the time to come; and found, That the defender's uplifting of the duties of the lands, of the said years bypast, by virtue of the said title, which was titulus verus et non putativus, et ubi fructus erant bona fide precepti et consumpti, did not liberate him from the said bygones; and found, That the pursuer ought not to be put to reduce the defender's right, as he alleged he ought, in this judgment, which he alleged to be of that same nature, as if he were in a removing, which was repelled. See Bona Fide Consumption.
Act. Cunninghame.Alt. Mowat & Gilmor.Clerk, Scot.
Durie, p. 665.
