Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN BAIRD OF NEWBYTH.

Gilbert Hay
v.
George Fleming

Date: 19 January 1666

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Gilbert Hay, being infeft in an annualrent, effeiring to the principal of 1000 merks, forth of the lands of Cambo, in December 1650, and having obtained decreet for poinding of the ground in anno 1657; the decreet is suspended, and compearance is made for George Fleming, who apprised the said lands, and stands publicly, infeft, and craves to be preferred, because Gilbert Hay his infeftment is base, and not clad with possession; and any decreet for poinding of the ground, [is] obtained after the apprising, at least after the denunciation; which cannot make the base infeftment public, there being no possession nor diligence [done] before denunciation nor apprising.

To which it is answered, That, notwithstanding of the said apprising and infeftment following thereupon, the infeftment of annualrent ought to be preferred; because the base infeftment being long anterior to the apprising, and he having, upon his said infeftment of annualrent, obtained decrcet for poinding of the ground, in October 1651, after there was but one term's annualrent due, and which decreet was a year prior to any infeftment following upon the said apprising, which being a legal diligence before the said apprising was confirmed by infeftment; which made his base infeftment, clad with civil possession a year before the appriser was infeft, sufficient to make the anterior base infeftment preferable; especially seeing there was but one term's annualrent due, and the decreet was recovered before the apprising was confirmed. And albeit that the common debtor, doing any voluntary deed, after the denunciation of his lands, will not prejudge the appriser's diligence; yet that denunciation or apprising is not an impediment to any lawful creditor to do diligence upon prior infeftment, or rights to make their infeftments, that wrere base, preferable, before the consummation of the appriser's right.

The Lords preferred the annualrenter to the appriser.

Page 50.