An arrester was preferred to a wadsetter, because his sasine, which was the only ground of a complete real right to the lands, was after the arrestment.
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One Warnock having obtained decreet against Hamilton of Peill, and his tenants, before the commissary of Hamilton, decerning the tenants to make the farms addebted by them to the said Hamilton of Peill, their master, of the crop 1631, forthcoming, for payment of a debt owing by him to the said Warnock; and the tenants suspending that sentence, compeared in the suspension, one Anderson, who by contract had acquired the heritable right of these lands from Peill, before the arrestment execute by Warnock; which contract contained a back-tack set to Peill by Anderson; likeas, before the arrestment upon the said contract, a charter was also subscribed, and albeit sasine thereon was not expede while after the arrestment, and albeit the sasine was also after the terms of payment, yet he alleged, he ought to be preferred to the arrester, in the farms controverted, so far as concerns the back-tack duty, contained in his heritable contract foresaid, seeing the sasine ought to be drawn back to its own cause, viz. to the contract and charter, and the intervening arrestment can be no impediment thereto, no more than an inhibition intervening before the sasine execute by another creditor, would have derogate to the validity of the right and sasine subsequent to the inhibition, the said sasine depending upon a cause anterior to the inhibition, which sasine he could not take the time of the contract and charter, seeing the lands held ward; and before he purchased the superior's confirmation, he could not adventure to take sasine; therefore he alleged, that he ought to be preferred to the arrester in the farms, in so far as his back-tack duty did extend unto; for, by the tack foresaid, the tenants were, in effect, become his tenants, and the arrestment could not affect the back-tack duty, which pertained to this party excipient, and not to Peill the arrester's debtor; notwithstanding whereof, the Lords preferred the arrester to the wadsetter, in respect the sasine, which was the only ground of a complete real right of the land, was after the arrestment, and in prejudice of the said arrestment, it could not give him right to that year's farm, and albeit a creditor's inhibition could not have hindered the party to perfect his heritable right, which had a true and real preceding cause, yet the arrestment was not alike, which behoved to work upon an existent body, which then fell not to be claimed, but by an heritor infeft; and therefore Anderson's allegeance was repelled, for the duty of the back-tack acclaimed.
Act.——.Alt. Gibson.Clerk, Gibson.
Fol. Dic. v. 1. p. 179. Durie, p. 693.
