Base Infeftments are preferred to one another, and to Public Ones, according to date, if steps have been taken, sine mora, to attain Possession.
Ellison v. Carmichael
Date: 26 July 1676 Case No. No 12.
Found in conformity with No 5. p. 1277.
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Captain Ellison being infeft in an annualrent out of the lands of Thurstoun in September, White of Thurstoun gave an infeftment to Thomas Dalrymple, his good-brother, in November thereafter, for the behoof of himself, Bailie Carmichael, and other creditors; to which infeftment Bailie Carmichael hath now right: Likeas White did put the said Thomas in possession of the most part of the lands that were in his own labouring, in December thereafter; and both infeftments became public, by confirmations, upon the same day. There is now a competition betwixt the infeftment of annualrent, and the said infeftment of property. It was alleged for Bailie Carmichael, That his right of property must be preferred, because it was clad with natural possession; and the infeftment of annualrent had no possession. It was answered for the annualrenter, That an infeftment of annualrent, or any other base infeftment, is a right of itself, without possession; but a public infeftment is preferred thereto, as being a private simulate right, retenta possessione; but not when there is no ground of simulation, being granted to a stranger and a real creditor, and when there could be no possession attained, because there intervened the infeftment of property, clad with possession before Martinmas, which was the first term of payment of the annualrent; which hath been formerly sustained: Likeas there is great reason for it, since the act of Parliament for registration of sasines, whereby they are null, if not registered within 40 days.
The Lords preferred the annualrenter, and found, That there having been no delay of attaining possession, or ground of simulation, the base infeftment was valid, being prior and preferable to the posterior base infeftment clad with possession.
There was also much debate concerning the way of the base infeftment of property its obtaining possession, as being granted by a notour bankrupt in fuga, who could not prefer one creditor to another: All which was denied; but the Lords proceeded not upon that ground, and so referred it not to probation.
