Whether Infeftments of Relief are valid without Possession.
Bruce of Newton v. The Creditors Of Clackmannan
1682.
February. Case No. No 55.
Found, that a base infeftment of relief, being a complete right in suo genere, is preferable, without possession, to a posterior public voluntary infeft.
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The Laird of Clackmannan having, in December 1677, granted a base infeftment of relief to his cautioners, with a provision, That they should not enter to possess till after distress and payment of the cautionry, and proportionally: he long before the Whitsunday thereafter, made a resignation in favour of his personal creditors, on (which) there was a charter expede in Exchequer: that same day the cautioners applied to the exchequer for a confirmation of their right; but the resignation was preferred, and the confirmation delayed for some hours: yet both were infeft on their respective charters before the term of Whitsunday. The cautioners now crave preference, for these reasons, 1st, Their base right is anterior to the resignation, and it could not, and they could not apprehend possession till the next term at soonest, and not then, unless they had paid the defender upon distress; and an intervening voluntary deed cannot be preferred: February 13. 1624, No 4. p. 1276.; July 2. 1625, No 5. p. 1277. 2dly, They applied to the Exchequer debito tempore, and though out of respect to the King's Commissioner, who was present, they did not take instruments upon their being delayed; yet they offered to prove per membra curiæ, that they applied and were delayed.
Answered for the creditors: The cautioners might have made their base infeftment public before the confirmation, by raising a poinding of the ground, or a declarator for that effect.
The Lords found, That the base infeftment of relief, being a right competent in suo genere, is preferable to the posterior public voluntary infeftment; and therefore preferred the cautioners.
Fol. Dic. v. 1. p. 91. Harcarse, No 585. p. 162.*** The same case is reported by Sir P. Home:
Bruce of Clackmannan having granted a base infeftment of relief to Bruce of Newton and Bruce of Powfoulis, for relief of several sums of money particularly condescended upon, in the right for which they stood engaged as cautioners for him; and thereafter Clackmannan having granted disposition of the lands to his personal creditors whereupon they were publicly infeft: Newton and Powfoulis pursue a declarator against the creditors upon this ground, That the pursuers being infeft in the lands for their relief, albeit base, yet being prior to the creditors, their public infeftment proceeding upon Clackmannan's resignation, they ought to be preferred to the mails and duties, ay and while they were relieved of their cautionries.—Alleged for the defenders, That the pursuer's infeftment being but base, and never clad with possession before the defenders public infeftment; they ought to be preferred.—Answered, That the pursuer's right being an infeftment of relief, albeit base, and not clad with possession, yet in law is preferable to a posterior public infeftment; there being a great difference betwixt infeftments of relief and infeftments of property: For an infeftment of property being a present title for possession, if it be base and not clad with possession, law presumes it to be simulate hoc ipso, that the disponer continues in possession; which cannot be alleged in the case, for an infeftment for relief, which is not granted nor intended as a present title for possession, but for relief, after distress; and particularly in this case, the right was so qualified, that the pursuers were not entered into possession.——The Lords found, That the base infeftment being a right of relief, and a competent right in suo genere, is preferable to the posterior public voluntary infeftment; and therefore preferred the pursuers.
