Betwixt Rights flowing from different Authors. - Husband with Wife's Assignees. - Between Real and Personal Creditors, where the Debttor's Infeftment Reduced. - Singular Successor of a Reverser, with the Heir of a Nominal Fiar. - Disponee in Security with a Personal Creditor.
Andrew Smeaton v. Tabbert
Date: 1 February 1667 Case No. No 80.
In a competition of rights flowing from different authors, the eldest wis preferred, tho' in petitorio, the other being in possession.
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Andrew Smeaton being infeft in an annualrent out of a tenement in the Canongate, pursues a poinding of the ground, and produces his own infeftment and his author's, but not the original infeftment of the annualrent. It was alleged no process, until the original infeftment were produced, constituting the annualrent, especially seeing the pursuit is for all bygones, since the date of the author's infeftment; so that neither the pursuer, nor his immediate author have been in possession. 2dly, If need be, it was offered to be proven, that before the rights produced, the authors were denuded. It was answered, That the pursuer hath produced sufficiently, and that his right was clad with possession, in the person of his mediate author, before the years in question. To the second, This pursuer hath the benefit of a possessory judgment by his infeftment, clad with possession, and is not obliged to dispute, whether his author were denuded or not, unless it were in a reduction.
The Lords sustained the pursuer's title, unless the defender produced a right anterior thereto; in which case, they ordained the parties to be heard thereupon, and so inclined not to exclude the pursuer, upon the allgeance of a possessory judgment; but that point came not fully to be debated: It is certain that a possessory judgment is not relevant in favours of a proprietor, against an annualrenter, to put him to reduce, because an annualrent is debitum fundi; but, whether an annualrenter possessing seven years, could exclude a proprietor, until he reduce, had not been decided, but in this case the Lords inclined to the negative.
