In a competition betwixt two infeftments, the first confirmation was preferred, and the bare giving in of a signature to the exchequer was found not sufficient, unless all diligence had been used by the one, or precipitation by the other.
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In a competition betwixt the Creditors of Clackmannan, Alexander Miln and Powfouls, upon two base infeftments, were the same day and hour infeft in Clackmannan's estate; the said Alexander for an annualrent of a sum due to him, and Powfouls, for relief of several sums in which he had been cautioner for Clackmannan; both infeftments to be held of and from Clackmannan. Both gave in signatures to the Exchequer in one day for confirmation, but Alexander Miln's signature was first past in Exchequer, and his confirmation first past the seals. Alexander did also, before either confirmation, obtain a decreet of poinding of the ground'; whereupon they compete for preference. Powfouls alleged, That his infeftment, being for relief, was valid from its date, there being no ground of simulation, but the infeftment astructed by anterior bonds to other creditors, wherein Powfouls is cautioner; and, therefore, by the act of Parliament, such infeftments, though base, are never to be postponed to any infeftments, not being prior, but are in the same case as infeftments of warrandice; both which cannot attain possession till distress, but from distress have effect from their date. 2do, As to the confirmations, the Exchequer, by act of Parliament, is ordained to give confirmations to all parties, as they demand the same; so that Powfouls having presented a signature of confirmation as soon as Alexander Miln, the gratification of Exchequer, in passing Alexander Miln's firsts cannot prejudge him. It was answered, That public infeftments are always preferred to base infeftments before possession, or diligence for the base infeftment first attaining possession; and, though custom hath accepted infeftments of warrandice, where possession is had of the principal lands, it hath not extended the same to infeftments for relief of personal debts, which would much unsecure purchasers. And as to the confirmations, the giving in of a signature without continuing to get the same past, imports nothing, 2do, Though the King, as superior by the common law, must receive apprisers or adjudgers, yet as to infeftments upon resignation or confirmation, the King, as all other superiors, may refuse all or confirm whom he pleases. And, by the act of Parliament founded on, viz. act 66. Parl. 5. 1578, The first confirmation is declared the best right. And albeit that act mention an act of Council, yet the King or his compositors ought not to deny confirmation upon the reasonable expenses of any party, yet that is not repeated in the statutory part, but only in the narrative; and an act of Council can derogate from no man's right, much less the King's.
The Lords found the giving in of a signature could not bring in that party, without first obtaining a confirmation, unless all diligence had been used by the one, or precipitation by the other; but did not determine that point, whether the Exchequer was obliged to confirm according to diligence, and did resolve further to hear that point, whether infeftments for relief of personal debts were valid from their dates.
