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Magbyhill having granted a wadset for 8000 merks, with an obligation to pay in and be accountable for the superplus over the current annual-rents, thereafter an eik of 2500 merks was made to the reversion, but was not registered; and the wadsetter being pursued by an adjudger, after the eik, for extinction of the wadset by intromission with the said superplus,
The Lords found, That the unregistered eik was null quoad the adjudger; but that it was titulus coloratus bonæ fidei ad percipiendos fructus, not only till the adjudication or citation in this process, but even till sentence therein. Although the reason being a nullity in jure, the defender had not probabilem causam litigandi. But the process had not depended long, and was to the behoof of the debtor's apparent heir. And it was alleged for the pursuer, That although titulus bona fidei may hinder to repetere fructus consumptos, yet the defender having also a valid title in his person, viz. the 8000 merks, the superplus ought to be imputed to the extinction of so much thereof yearly.
