Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR PETER WEDDERBURN, LORD GOSFORD.

George Dollas, Writer,
v.
Nisbet

Date: 15 November 1671

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In a double poinding, pursued at the tenant's instance, of a tenement of land; compearance being made for Nisbet, as being infeft in an annualrent of 100 merks, by William Monteith, who was common author both to Dollas and Nisbet, and thereupon craved a poinding of the ground:—Dollas did compear, and produced an infeftment of property of the said tenement, upon a comprising, as likewise an infeftment of an annualrent of 700 merks, prior both to the comprising, and to the said infeftment of annualrent granted to Nisbet; and thereupon craved to be preferred.

It was alleged for Nisbet,—That Monteith, having the right of the comprising disponed to him, the right of annualrent was extinguished by the right of property supervenient; quia res sua nemini servit; and, for the right of property founded upon the comprising, it could not defend against Nisbet's annualrent; because the disposition of the comprising to Monteith, the common author, flowed from Nisbet's author, and was affected with the burden of the said annualrent of 100 merks, wherein Nisbet's author was infeft; the said annualrent being reserved out of the disposition of the comprising.

It was answered for Dollas,—That the right of the annualrent was not extinguished by Monteith's acquiring of the right of property; seeing Monteith was but a singular successor, and might acquire several rights, either of annualrents or comprisings, whereby he might defend himself against any third party; and the infeftment of annualrent being granted by him to Nisbet, only by virtue of the said reservation, contained in the disposition made to him of the comprising, that did operate no more but that it gave him jus non repugnantice: so that, notwithstanding of the comprising, he might bruik the annualrent of 100 merks, but could not defend against the prior right of the annualrent of 700 merks, seeing the common author did not dispone the said right of annualrent of 100 merks, for all right that he then had in his person, or should acquire.

The Lords did not proceed to give their interlocutor, it being intimated to them, the time of the advising, that parties were agreed; but having considered Nisbet's author's right, that it was not a simple reservation out of the right of comprising, but by an express obligement to infeft in an annualrent out of the tenement of land, when he had right, both to the annualrent of 700 merks, and to the comprising, and that infeftment followed before Dollas's right, that Nisbet ought to be preferred; albeit they conceived, that the first right of annualrent of 700 merks was not extinguished by the supervenient right of property founded upon the comprising, the legal whereof was not expired; but the said annualrent of 700 merks might be a ground to defend against any other party who could pretend right to the lands in question flowing from the heritor.

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