Subject_1 ANNUALRENT, INFEFTMENT OF. Subject_2 In what manner an Annualrent-Right may be Extinguished.
M'Lellan v. Mushet
Date: 7 January 1680 Case No. No 10.
A registred renunciation, without necessity of resignation, extinguishes an infeftment of annualrent, quoad omnes effectus, even against a singular successor.
A discharge of annualrent is effectual against a singular successor, in the infeftment of annualrent, acquired by apprising.
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John M'Lellan having adjudged an annualrent, by infeftment upon a bond, and Adam Mushet having assignation to a part of the same sum, the debtor raised double poinding against them both, and alleged liberation from a part of the sum, for which he produces a renunciation from the creditor, before either of these competitors rights, and likewise two discharges of parts of the sum.—It was answered for M'Lellan, That he being infeft in a real right, his author's renunciation is not relevant against him, a singular successor, unless it had contained a procuratory of resignation, and that an instrument of resignation ad remanentiam had been taken thereupon: For, as a disposition or charter, without a sasine, cannot constitute an annualrent, so neither can a personal renunciation or discharge evacuate the same, without an instrument of resignation ad remanentiam, the annualrent being holden of the debtor.—It was replied, That the act of Parliament anent registration of sasines and reversions, doth not only sustain resignations, but also renunciations of wadsets, when duly registrate; and accordingly, this renunciation is marked registrate in the said register; and as to the other discharges there can be no controversy, but they are valid as to annualrents bygone resting the time of these discharges.——The Lords sustained the renunciation, being duly registrate; and found it effectual against a singlar successor; and sustained the other discharges, in so far as they extended to annualrents then resting.—It was further alleged for M'Lellan, That he had used inhibition against his author, before he granted this renunciation, whereupon he hath raised reduction of the said renunciation.—It was answered, That inhibition impedes the person inhibit to alienate any real right, but doth not impede those persons inhibit to pay him, and take from him either discharge or renunciation, as was found in the case of Mr John Ellies and Wishart*, and several times since.
The Lords found the inhibition did not reach the renunciation or discharge, granted by the person inhibit, upon true payment, seeing the debtor of the person inhibit could not be hindered by inhibition, to pay and liberate himself. (See Inhibition.)
