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.
Brown v. Innerveik
Date: 16 June 1674 Case No. No 81.
In a competition betwixt two base infeftments flowing from different authors, the Lords preferred that right which was in possession, tho' the right upon which the process was founded was of an older date, and refused to sustain the reduction without a progress from the King, or a common author, or prescription; for the defender argued, that he being in possession, and producing, any infeftment as a title, cannot be affected but by a prior complete right.
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Robert Brown pursues a reduction of the right of a two merk and a half merk land, being a portion of Blackburn, against John Innerveik: In which pursuit, the pursuer produces a base infeftment from John Duns, in favours of William Wallace, of the said whole portion; Item, An infeftment in favours of James Wallace, as oye to William, and the pursuer's infeftment from James. The defender produces an infeftment from Chirnside of East-Nisbet to Innerveik, with a contract of division between Innerveik and John Wallace, son to William, bearing, “That Chirnside had given right to either of them of the equal halves of the said tenement, and that Innerveik had right from Duns, the pursuer's author;” he produces likewise a discharge from Duns to Chirnside of the price of the said lands. Hereupon the pursuer repeated his reason of reduction, viz. “That his right from Duns by progress began in anno 1575, and the defender's first right produced is, but in anno 1603, from Chirnside;” so that both being but base rights, and the pursuer's long prior, it is preferable The defender alleged, That the reason so conceived was not relevant, for he being in possession, and producing any infeftment as a title, it cannot be taken away but by a prior valid right; and so the pursuer must libel and instruct that Duns his author had right immediately or mediately from the King, the first fountain of right; or that the defender derives his right from Duns, as common author to both, and so cannot quarrel Duns' right; or that the pursuer or his author since the act of prescription had possessed by virtue of their rights 40 years without interruption. It was answered for the pursuer, That where the defender could allege none of these titles himself, it was sufficient for the pursuer that his right was equally good, and more ancient. 2do, He instructs Duns o be the common author, as being author to Chirnside by Duns' discharge, and by the contract of division. It was replied, That such acknowledgments of authors will not prejudge their singular successors, unless their infeftments be produced, which can only show a progress from a common author; otherwise no singular successor could be secure against such acknowledgments or writs not contained in the investiture; and, as to the contract of division with John Wallace, it operates nothings because the said John Wallace was never infeft, but his son James Wallace was infeft, as heir immediate to his good-sire.
The Lords found the reason of reduction not relevant upon the prior base infeftment, without a progress from the King, or a common author, or prescription; and found the acknowledgment did not instruct a common author, without production of the progress of infeftments; and that the contract of division was not effectual, unless that Wallace the son were instructed to have been infeft, or that he is represented by this party, who thereby is obliged to fulfil his contract of division.
