Scottish Court of Session Decisions

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

General Dalziel
v.
The Earl of Marr

Date: 12 March 1685

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In a competition between a prior infeftment of relief, without possession or confirmation, and a posterior public infeftment confirmed,—Alleged for the infeftment of relief, That, seeing the same was not a title of possession till after distress, it must be reputed public ab initio, unless, after distress, the party had been in mora to possess: just as an infeftment of annualrent would be preferred to a posterior voluntary [right] clothed with possession before the term of payment of the annualrent, seeing the annualrenter could not possess till the term; and the want of possession cannot infer simulation. Answered, The infeftment of relief might have been made public, ab initio, by confirmation; and, as a confirmation, prior to another right attaining possession, will make the first preferable right, so an infeftment of relief should be made public by confirmation or declarator. The Lords inclined to prefer the infeftment of relief for the reason above mentioned; but the point was not voted.

In this competition, it was further alleged, That the confirmation of the infeftment of relief was of a date posterior to the other's confirmation; yet that can only be considered from the date of the superior's delivery of it to the party, and not from the date of his subscription, otherwise it might be in the power of superiors to let confirmations ly subscribed several years by them, and prefer creditors as they think fit. Answered, Seeing the superior's confirmation requires not to be published, but may be kept private by the obtainer, and the design thereof is only to have the superior's consent, after the charter is signed and the composition paid, it is looked upon as the party's evident from the date of the subscription; and the priority and preference of confirmations in exchequer is ruled according to the date and sealing, without respect to the delivery. The Lords found the allegeance of not-delivery relevant; and that confirmations granted by private superiors are to be considered from the date of delivery to the party, or some to his behoof, and not from the date of subscribing. Which decision seems not very well founded.—Castlehill's Pratt, tit. Infeftment, No. 72.

Page 166, No. 601.