Betwixt Singular Successors, where the Common Author is not Infeft.
Brown v. Smith
Date: 20 June 1676 Case No. No 75.
An assignation to an incomplete real right, though directly done and intimated, has no effect against another singular successor completing his right by infeftment.
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Andrew Sutor having disponed the equal half of the east side of Letsie to Ronald Brown, with power of resignation; the said Ronald grants an infeftment of annualrent to James Brown, and thereafter disposes the land irredeemably to David Smith in liferent, and John Smith in fee, and assigns the disposition and procuratory therein granted to him by Andrew Sutor, whereupon the Smiths are infeft as assignees to the disposition and procuratory, but Ronald Brown the cedent was never infeft. James Brown the annualrenter pursues poinding of the ground, wherein the Smiths compear and allege, That the pursuer's infeftment is null, neither being clad with possession, nor given by one who was infeft, or had power to give infeftment, but by Ronald Brown, who was never infeft.—It was answered, 1mo, That Ronald Brown's disposition (before any infeftment) was transmissible by assignation, and the consitution of this annualrent imported an assignation, and the registrate sasine was equivalent to an intimation; 2do, Infeftment having followed upon Ronald Brown's disposition, albeit in the person of his assignee, yet it compleats his right, and makes it a real right, and as supervening accresseth to the annualrenter.
The Lords sustained the defence, and repelled both the replies, and found, That an assignation to an incomplete real right, though it had been directly done and intimater had no effect against a singular successor compleating his right by infeftment; and found, That the real right did never accress to the annualrenter's author Brown, who was never infeft, but only to Smith, the author's assignee.
