Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JAMES DALRYMPLE OF STAIR.

John Inglis
v.
The Creditors of East-Barns

Date: 13 December 1676

Click here to view a pdf copy of this documet : PDF Copy

In a competition amongst the creditors of East-barns, Mr John Inglis craves preference, because he stands infeft by the common debtor, long before any other creditor.

It was answered, That his infeftment is base, and the other creditors are infeft upon apprisings, before any possession in his person.

It was replied, That he produces discharges of four years' annualrent of his sum, before the common debtor's son's infeftment, from whom the creditors have apprised.

It was replied, That this discharge can import no possession by his infeftment, which is conditional, That if he be not paid of the sums due to him, and relieved of his cautionary, he should enter to the possession of the lands; but this discharge is only of his annualrents by his debtor.

It was duplied, That where there is no ground of simulation, a base infeftment is valid; especially being for warrandice or relief, whereby it can attain no possession till distress. 2do. This discharge doth expressly relate to his infeftment of relief.

The Lords sustained the reason of preference on the said Mr John Inglis his infeftment, relevant, in so far as concerns the sum due to him, whereof he received annualrent by the discharges produced.

Vol. II, Page 478.