A conveyance, per ambages, may be effectual, where, if directly done, it would not be sustained.
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The said Gilbert being infeft in an annualrent out of the lands provided to the Lady in conjunct fee before her infeftment, and long thereafter having got a new infeftment for the whole bygone annualrents accumulate in a principal sum; in competition betwixt them for preference, the Lords found that M'Cleland ought to be preferred for the whole annualrents yearly of the sum contained in his first infeftment; but as to the annualrent of these annualrents, as being, accumulated and made a principal sum, whereupon the new infeftment was granted, they found that the Lady ought to be preferred, in respect her liferent infeftment was prior thereto, so that it could not be drawn back in prejudice of her right;—notwithstanding, it was alleged, That if M'Cleland either had, or should yet comprise for the whole bygone annualrents, undoubtedly he would be preferred to the mails and duties for the whole sums contained in his infeftment; for the Lords found there was a difference betwixt voluntary rights and legal diligence, and the contract, to make the annualrent a principal to bear annualrent was odious, and posterior to the Lady's right.
Fol. Dic. v. 2. p. 309. Gosford, MS. p. 43.
*** Stair's report of this case is No 44. p. 10648. voce Possessory Judgment.
