Base Infeftments are preferred to one another, and to Public Ones, according to date, if steps have been taken, sine mora, to attain Possession.
Douglas of Morton v. the Tenants of Kinglassie
1662.
February. Case No. No 10.
A base infeftment of annualrent was granted, to take effect after the granter's death, upon which a decree of poinding the ground followed, during the granter's life. This decree, upon which possession could not follow during the granter's life, was held sufficient to make the base infeftment public.
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In an action of mails and duties pursued by Douglas of Morton, against the tenants of Kinglassie; wherein, for Morton there was produced an infeftment of annualrent granted by Hamilton of Kinglassie, to Hamilton his second son, author by progress to Morton, with a decreet of poinding the ground thereupon:—It was alleged by the creditors comprisers, That the infeftment and decreet could furnish no action or interest in their prejudice, because the infeftment was base, holden of the granter, wherein the annualrent was suspended during the granter's lifetime; whereas, long before the term of payment, and before any decreet could be effectually given thereupon, for poinding of the ground, they were infeft, holden of the superiors. And if they had been compearing, they would have alleged, that no such decreet for poinding the ground could have been granted during old Kinglassie's life; seeing the annualrent was only payable after his death and the ground only then poindable therefor.—It was answered, That though the annualrent was suspended, yet the citation of the tenants and heritor for poinding the ground, and decreet following thereupon made the right so public, that no posterior infeftment whatsoever could be preferred, thereto. And though the decreet was not to have present execution, yet the ground might be decerned poindable, the term of payment being first come, and bygone; just as when an infeftment of that nature is granted for an annualrent payable at the very next term: The party infeft, may raise his summons and obtain decreet and sentence before the term.
The Lords repelled the allegeance, and preferred the annualrenter. See Legal Diligence.
Fol. Dic. v. 1. p. 88. Gilmour, No 40. p. 30.*** The same case is reported by Stair:
In a competition betwixt the Creditors of Hamilton of kinglassie, it was alleged for William Hoom, who had right to an annualrent, That he ought to be preferred to Joseph Lermont, who stood publicly infeft in the property, in anno 1655; because albeit the annualrent of itself was base, yet long before, it was validate by a decree for poinding of the ground. It was answered, That there was no way to make a base infeftment valid, but by possession: Here there could be no possession, because the annualrent was granted to take effect only after the granter's death, and the decreet thereupon was obtained long before his death, and so could be repute no possession.
The Lords were of opinion, That the foresaid decreet of poinding of the ground, upon the base infeftment, ordaining the ground to be poinded, (the terms of payment being come and bygone) was sufficient to validate the base infeftment; and that thereby it remained no more a private clandestine infeftment.
February 27. 1662. In the competition betwixt the Creditors of Kinglassie, mentioned the former day, the dispute anent the base infeftment, made public by the poinding of the ground so long before the term of payment, being reasoned before the Lords in presentia, they sustained the same as before.
