Whether Possession of a Part validates as to the Whole.
Margaret Alexander v. Laird of Clackmannan
Date: 9 July 1668 Case No. No 61.
Possession upon an infeftment of corroboration, was found to validate an original infeftment of annualrent, which was granted out of other lands.
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Margaret Alexander being infeft in an annualrent out of the lands of Sauchie; by a posterior infeftment, in corroboration of the former right, she was infeft in that same annualrent, out of other lands, whereof she was in possession; but this posterior infeftment being reduced upon an inhibition prior thereto; the pursues poinding of the ground of the lands of Sauchie, upon the first infeftment.—It was alleged for Clackmannan absolvitor, because the pursuer's right of annual-rent is base, never clad with possession, and now he is infeft in the lands, either publicly, or by another infeftment clad with possession.—The pursuer answered, That the infeftment in the lands of Sauchie was sufficiently clad with possession, in so far as the posterior infeftment of annualrent in corroboration thereof, was clad with possession; and as payment made by the heritor, by himself or his tenants, or by assignation to mails and duties of other lands, in satisfaction of the annualrent, infers possession; so payment made by his tenants, by the posterior infeftment in corroboration, can be no worse than an assignation to the mails and duties of these lands; which, as it pays some terms annualrent of the first infeftment, so it must clothe it sufficiently with possession.—It was answered, That here being two distinct infeftments at several times, albeit for the annualrent of the same sum, yet the possession of the last cannot relate to the first.
The Lords repelled the defence in respect of the reply; and found, That possession by the last infeftment, did from that time sufficiently validate the first.
Fol. Dic. v. 1. p. 91. Stair, v. 1. p. 550.*** Gosford thus reports the same case:
The Laird of Sauchie having infeft Margaret Alexander in liferent, and her children in fee, in an annualrent of 160 merks out of the barony of Sauchie; and long thereafter, and in corroboration of the foresaid right, having infeft them in the like annualrent, effeiring to that same principal sum, out of the lands of Gartinkeirs, whereof she was in possession; this last infeftment being reduced ex capite inbibtionis, she pursues a poinding of the ground out of the lands of Sauchie, which was sustained; notwithstanding that it was alleged for Clackmannan, that he was publicly infeft, and the pursuer's infeftment of Sauchie was base, never clad with possession; because she being in possession of the annualrent out of Gartinkeirs, which was granted in corroboration, it was sufficient to make the infeftment out of Sauchie public by possession, the payment of annualrent, quocunque modo, being sufficient to make them clothed with possession.
