Base Infeftments are preferred to one another, and to Public Ones, according to date, if steps have been taken, sine mora, to attain Possession.
Sir James Oliphant's Creditors
Date: 12 July 1634 Case No. No 9.
A base right, though registered and confirmed, but without actual possession, postponed to an apprising. A circumstantial case, and doubtful decision.
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In a double poinding, which of Sir James's creditors should be answered of the duties of these lands, which were apprised by some, and who being publicly infeft therein, craved therefore to be answered of the said duties of the crop 1632; which was then controverted; and on the other part, Patrick Oliphant, who craved to be preferred to John Fairholm, the compriser; because long before his comprising and denunciation, he was infeft in ah annualrent out of the said lands, for a principal sum addebted to him by the said common debtor; which infeftment proceeded upon a procuratory granted by the debtor, for taking infeftment, either to be holden of the granter, or of the king, the debtor's superior; and albeit he was seized to be holden, only of the granter, yet his infeftment was registered in the secretary's register, and so made public before Fairholm's denunciation: As also the same was confirmed by the King, before Fairholm's comprising was complete; in the which confirmation, the King declared the said sasine to be as sufficient as if he had been infeft to be holden of the King.—And it being answered for the compriser, That the annualrenters right was base, and was not clad with possession, neither could be clad with possession, seeing the payment of the annualrent was not conferred till the year 1633, to be the first term of payment of the annualrent; and the confirmation nor registration made not the same public, so that still the infeftment remained a base right, and could not be respected against the public, which instantly was to take effect, and to receive present possession. And the annualrenter answering, That albeit his infeftment could not take present possession, seeing the term of payment was not before Whitsunday 1633; yet that was not a ground of law to annul his right thereby, seeing it was a true and lawful debt, and lawfully constitute, ubi cedebat dies, licet non venit, et licet non peti possit; neither could it be reputed base thereby to extinguish his right, being registered and confirmed; which took away all suspicion of fraud or clandestine dealing; for the public registration took away all these suspicions, which gave the cause of any acts of Parliament, made against private rights; and he has beside done all lawful diligence to make his infeftment notour, by intenting action thereupon, and executing of arrestment before this compriser; which must have force, as if he had obtained possession, seeing both, the parties are but yet contending de adipiscenda possessione; and if his infeftment had been public, and had the term of payment conferred to a subsequent term, as this infeftment quarrelled does, yet being prior to the compriser's right, albeit thereby he might be secluded from the term controverted, which precedes the term of his payment, yet thereby his infeftment could never fall for any years subsequent, when the term of his right should come; but then in reason it ought to have effect, and be preferred to the compriser. Notwithstanding of this allegeance for the annualrenter, the compriser was preferred, and the annualrenter's right was found base: But here the question, as said is, was for a term, whereto the annualrenter could not claim right, being before his terms of payment; and so for that term he was excluded; and the dispute was not for terms, whereto his infeftment might give him right; although the Lords, by their interlocutor, found his right base, and so did exclude him for ever.
Act. Oliphant.Alt. Cunninghame.Clerk, Hay.
Durie, p. 726.
