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The tenants of Cambo raised a double poinding against Ker, and Hunter, both being infeft in annualrents, base, where the last base infeftment within a month of the former, being clad with possession by a decreet of poinding the ground, a year after both, and no diligence on the first,
The Lords preferred the last infeftment, as first clad with possession.
It was further alleged, that this annualrenter had accepted a part of the land in satisfaction of his annualrent. It was answered, that there was writ there required, viz. a renunciation of the rest, and till that was done, est locus pænitentiæ.
The Lords considering the case, found, that if the promise were only to restrict the annualrent to a part of the land burdened therewith, it was pactum liberatorium, and there was not locus pænitentiæ; but if it was a promise to accept other lands, or the property of a part of the lands burdened, there was locus pænitentiæ till the mutual rights were subscribed, whereby the one party disponed the property, and the other the annualrent.
