Payment of a term's annualrent of a bond, upon which sasine did not follow till after the payment, found not to make it public in competition with an appriser.
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Patrick Oliphant pursuing to hear the ground of the lands of ——pertaining to Sir James Oliphant, to be poinded for an annualrent of 250 merks yearly, which he had out of the said lands, by virtue of these titles, viz. a bond granted to him by Sir James in December 1631, of the principal sum of 2500 merks, payable at Whitsunday thereafter 1632, containing an obligement to infeft, and containing therein a procuratory; the bond bearing an obligation to infeft by two infeftments, one to be holden of himself, and the other of the King; conform whereto he was infeft in June 1632, and it was registrate in the secretary's register the same month; and the said bond bearing, as said is, To be holden of the King, was confirmed in July 1632. And having also received a term's payment of the said annualrent, but before the sasine, for the term intervening betwixt the obligation and the term of taking the sasine, viz. for the term betwixt Martinmas 1631 and Whitsundry 1632; in respect whereof he claimed the ground to be poinded, as affected with that annualrent; and John Oliphant of Bachiltoun alleging that the ground ought not to be burdened therewith, because he stands heritably infeft in these lands, and by virtue thereof in possession, by virtue of a public right depending upon comprisings; and albeit he be posterior, yet being public, and clothed with possession, as said is, it should give him preference. The Lords preferred the defender to the pursuer's prior right, albeit the pursuer's debt was anterior to the defender's debt, whereupon his comprising and public infeftments followed; and albeit the pursuer's sasine was also prior to the denunciation of the defender's comprising, and that the same was also registrate in the public register, and confirmed by the King, before the defender's infeftment; which two acts the Lords found made not the pursuer's right public; neither had the Lords respect to the term's payment made to the pursuer after the bond before his sasine; for that payment they found could not corroborate the infeftment, as the same would have done in law, if it had followed the infeftment, and had been paid before the defender's public right; for they found that the same payment could not be drawn to the sasine, nor the sasine to it, as the pursuer alleged it ought to be in reason; which the Lords repelled: Neither did they respect, that the pursuer had done most exact diligence upon his infeftment, seeing he had shortly after the term of payment of the first term of his annualrent, by that whereof he was paid, as said is, before his sasine, intended action upon his right for poinding of the ground, which has ever been depending since in plea and question, betwixt him and the creditors of the common debtor: Likeas his infeftment was known to the defender long before his right and infeftment, and comprising whereon it proceeded; so that it cannot be repute a base and obscure right, which was not known to the party, and which might make him excusable to have taken any right wherewith to clothe himself for freeing him of that burden; as might have been in two contrary deeds, done by one author, contrary to the tenor of the act of Parliament, which cannot militate in this cause betwixt two creditors doing diligence: Which answers were all repelled, and the defender was preferred.
Act. Cunninghame.Alt. Oliphant.Clerk, Hay.
Fol. Dic. v. 1. p. 89. Durie, p. 796.
