Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR ROGER HOG OF HARCARSE.

Sir George Lockhart
v.
Sir John Clark of Pennycook

Date: 13 February 1685

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James Clark, having disponed his lands of Wrightshouses to his brothers, Sir John and William, some years ago, and thereafter, Sir John having taken an heritable bond of annual-rent out of these lands, for the sum contained in the disposition, and other sums then advanced; they forbore to take infeftment till James was broken, and then they infeft themselves upon both rights; and, the day after, Sir George Lockhart was infeft in an annual-rent upon James Clark's bond. There arose a competition betwixt Sir George and the two brothers of the common debtor. Alleged for Sir George Lockhart, That he ought to be preferred, in respect the brothers' delay to infeft themselves, to cover James's trade in borrowing money, was fraudulent; 2. The posterior right of annual-rent is incompatible with the first right of property, proceeding from the same author, seeing res sua nemini servit, and it imports a passing from the first; 3. Sir George's infeftment, though a day posterior, was first made public by summons of poinding the ground formally executed; whereas Sir John Clark's right could not be habilely clothed with possession by his summons of mails and duties. Answered for Sir John Clark, That he might take infeftment when he pleased on his disposition for an onerous cause; and his delay to take infeftment can infer no presumption of fraud, James Clark being a trading merchant, who had a considerable stock, and broke by reason of cautionary for John Muir and others, whose affairs went suddenly in disorder; 2. The bond bears an express clause and provision, that the taking of annual-rent should not be understood a passing from the right of property; but it might be lawful for him to use both, or either, as he thought fit; 3. In defence of rights, one may use inconsistent titles;—December 22, 1674, in the case of Sommervell; March 1684, Pitliver agaomst Provost Miln; 4. The summonses are opponed, which are applicable to both rights. The Lords sustained the second and third allegeance proponed for Sir George Lockhart, and found, that the right of property was passed from by taking the posterior annual-rent, and that a summons of mails and duties did not clothe an infeftment of annual-rent with possession; and therefore preferred Sir George.

Page 166, No. 598.