The Lady Halliburtoun v. The Creditors of Halliburtoun
Date: 27 July 1670 Case No. No 3.
Though a mill cannot past as a pertinent, yet when it is built after a purchaser's infeftment, it accresces to him, and therefore a liferentrix infeft on lands on which a mill was afterwards built by the proprietor was preferred to a posterior appriser infeft expressly in the mill.
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The Lady Halliburton being provided by her contract of marriage to the mains of Halliburton, with the mill and pertinents, and her precept of sasine bearing warrant to infeft her in the mains and mill, by earth and stone of the land, and by the clap of the mill; her sasine having the said precept engrossed bears her by virtue thereof to be infeft by the earth and stone of the land, but mentions nothing of any symbol for the mill, or of any reason that sasine was not taken of the mill, because it was demolished; the mill being thereafter built or re-edified, the creditors having apprised, did take infeftment of the mains by earth and stone, and of the mill by clap and happer; and now in a competition betwixt the Lady and them anent the rents of the mill, it was alleged for the Creditors, that they ought to be preferred, because they were infeft in the mill, and the Lady was never infeft therein, albeit her precept of sasine bore an express warrant to infeft her therein by clap and happer. It was answered for the Lady, that her infeftment of the land, with the mill and other pertinents, is anterior to the Creditors, and must extend to the mill, albeit she took no special sasine thereof, because there was no standing mill at the time of her sasine; so that the mill being built by her husband thereafter, solo cedit, and belongs to her as a pertinent; for though where a mill is before infeftment, it cannot pass as a pertinent without a special sasine, yet where it is only built thereafter, it accresces to any party infeft in the land, especially being infeft in the land, with the mill thereof.
The Lords preferred the Lady, she proving the mill at the time of her contract and infeftment was not at all built, or having been built was demolished.
Fol. Dic. v. 1. p. 574. Stair, v. 1. p. 701.
*** A similar decision was pronounced, January 1666 Campbell against Stirling No 5. p. 8241. voce Liferenter; in which case the Lords declared that if the husband who built the mill did thirle any other lands thereto, besides the liferent lands, the liferenter should have no benefit thereby.
