Whether Possession be requisite to give effect to Base Infeftment.
Tenants of Kilchattan v. Lady Kilchattan, Major Campbell, and Bailie Hamilton
Date: 16 January 1663 Case No. No 1.
A base infeftment is not null for want of possession, although it may be excluded by a public infeftment before possession.
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Old Kilchattan, in his son's contract of marriage, dispones the lands of Kilchattan to his son young Kilchattan, and his Lady in conjunct-fee; whereupon there was infeftment taken, in favour of the husband and wife, to be holden from the disponer, and of the King; but the same was not confirmed till the year 1662: At which time, Major Campbell procures a confirmation of the conjunct-infeftment, and sasine thereon; which confirmation hath a clause insert, bearing the same to be only in so far as may confirm and establish the right of an annualrent granted by young Kilchattan to the Major; and thereafter the Lady confirms the conjunct-infeftment simply. In anno 1654, young Kilchattan infefts Major Campbell in an annualrent out of the lands; thereafter Hugh Hamilton apprised from young Kilchattan, and was infeft upon this apprising about that time.—It was alleged by the Lady, that she ought to be preferred, because she being joined with her husband in the conjunct-fee, and thereupon infeft; it is sufficient to give her the right of liferent, which is but a personal servitude.—It was answered, first, That Major Campbell having procured the first confirmation, which is expressly limited unto his annualrent, must be preferred to the Lady, and that such limitations might lawfully be, because it being free for the superior to confirm, or not, or to confirm a part, and not the rest, he might confirm it to what effect he pleased; and his confirmation being extended no further, the Lady cannot crave preference, because she is now only infeft in the lands in question in warrandice, that her principal lands shall be worth so much, and it is not yet declared in what way they are defective.
The Lords, in respect the Lady's right was not confirmed, preferred the Major as to his annualrents.
It was alleged for Hugh Hamilton, That he must be preferred to the annual-renter, because he being publicly infeft upon his apprising, before the infeftment of annualrent, at least before it was cled with possession, whereby it became a valid right, the King's charter upon the apprising, is virtually and equivalently a confirmation of Kilchattan's infeftment, especially in favours of a creditor, who could not perfectly know his debtor's, condition; which if he had known, and given in expressly a confirmation to the King, it would have been accepted, seeing the King respects none; and therefore the King's granting of a charter upon the apprising must be interpreted equivalent.
The Lords found, That the charter upon the apprising was not equivalent to a confirmation.
It was further alleged for Hugh Hamilton, That the confirmation obtained by Major Campbell, behoved to accresce to him, who had the first complete right, by public infeftment upon the apprising; and albeit that base infeftment upon the annualrent granted by Kilchattan to Major Campbell, was prior, yet it was null till it was cled with possession; and therefore, if it was not cled with possession before Hugh Hamilton's infeftment, the confirmation must accresce to Hugh Hamilton's infeftment.
The Lords found, That the base infeftment was not null for want of possession, albeit it might be excluded by a public infeftment before possession; but found, that Hugh Hamilton's public infeftment was not complete in itself, because it put Hugh Hamilton only in the place of young Kilchattan, who had a null right till confirmation : Which confirmation they found did not accresce to the base infeftment, being cled with possession at any time before the confirmation;. for at that time it became a complete right; at which time the apprising and infeftment was no complete right; and therefore the confirmation, albeit it had not had this restriction accresced to the base infeftment, as being the first complete right in sue genere. See Virtual Confirmation. See Confirmation. See Jus Superveniens, &c.
