Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR PETER WEDDERBURN, LORD GOSFORD.
Date: Brown and Gordon
v.
Smith
20 June 1676 Click here to view a pdf copy of this documet : PDF Copy
In a multiplepoinding, raised at the instance of the tenants of Litsie, who were pursued for the maills and duties;—it was alleged for Brown, That upon a precept, and seasine following thereupon, he was infeft in an annualrent out of the said lands, a full year before John Smith, and so ought to be preferred.
It was answered and alleged for Smith, That he ought to be preferred notwithstanding; because he had a public right by an assignation to a procuratory of resignation, to be holden of the superior from the common author, who was
never infeft himself, and so could grant no real right; whereas he was infeft by charter from the superior. It was replied, That the common author having a disposition, which was a personal right, he might assign the same; which being intimated by a seasine taken therein, he could not thereafter assign the same to his prejudice.
The Lords found, that the common author, having no real right in his person, could not grant a right of annualrent, to be holden base of himself; and preferred Smith, as being infeft by the superior, as assignee to the procuratory of resignation.
Page 545.
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