A party was infeft in an annualrent base. Before he attained possession, another adjudged. The infefter having got a year's annualrent, before the adjudger was publicly infeft, the Lords preferred the annualrenter.
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John Nisbet, merchant in Edinburgh, being infeft in an yearly annualrent of L. 72, out of the lands of Lumsdean, having pursued a poinding of the ground; and there being compearance made for Sir Daniel Carmichael; another creditor, it was alleged for him, That he ought to be preferred, because John Nisbet's right of annualrent being but a base infeftment, Sir Daniel had led a comprising of the lands before the base infeftment was clad with possession, and so was medium impedimentum, and could not be drawn back to the date of John Nisbet's infeftment, in prejudice of his comprising; especially seeing he was thereafter publicly infeft upon his comprising.—Answered, That the comprising being after John Nisbet's infeftment of annualrent, and the discharge of a term's annualrent, albeit after the comprising, yet being before Sir Daniel was publicly infeft, must be drawn back to the date of the infeftment of annualrent, to clothe his right of possession; so that he having the first complete right, he ought to be preferred; a naked comprising being but equivalent to a personal right, was not such a medium impedimentum as to hinder the discharge of a term's annualrent to be drawn back to the date of the infeftment; just as when a party grants an infeftment of annualrent, and thereafter should grant a disposition of the lands to another person; if the infeftment of annualrent be first clad with possession, before the party be publicly infeft upon the disposition, or before a base infeftment be clad with possession, the infeftment of annualrent will be preferred.——The Lords preferred John Nisbet upon his infeftment of annualrent.
Fol. Dic. v. 1. p. 89. Sir P. Home, v. 1. No 103.
*** See Nisbet against Carmichael, No 586. voce Competition.
