Sir Harie Hume v. Tenants of Kello, and Sir Alexander Hume
Date: 23 July 1667 Case No. No 26.
The receipt of a small sum, far within a term's annualrent, was found to validate a base infeftment of annualrent; though the infeftment was not specified; and though more than the sum of annualrent was due, upon a personal bond, before the date of the infeftment.
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Sir Harie Hume having comprised the lands of Kello, compearance is made for some annualrenters, who craved preference, because their infeftments of annualrent were before the apprising: It was answered, That the infeftment of annualrent was base, never clad with possession: It was answered for the annualrenter, That he produced an antapocha, bearing the receipt of a discharge granted by the debtor of the annualrent, which did instruct the annualrenter was in possession before the apprising, by uplifting the annualrent from the debtor: It was answered, That the sum was of fourscore merks, which was far within a term's annualrent, and that it related only to the personal bond, and not to the infeftment, and that there was more than this sum due of annualrent by the personal bond, before the date of the infeftment, to which only it behoved to be imputed: It was answered, That the receipt being general in part of payment of the annualrent, he that paid the sum might impute it to what term he pleased, and so would impute it to a term after his infeftment: It was answered, That, before that discharge, the pursuer's apprising was led, though no infeftment thereon, after which so small a part of the annualrent could not be impute to any but the first annualrent due, and could not validate the base infeftment.
The Lords found it sufficient to validate the base infeftment, notwithstanding of what was alleged on the contrary.
