Base Infeftments are preferred to one another, and to Public Ones, according to date, if steps have been taken, sine mora, to attain Possession.
Ramsay v. Kinloch and Chaplain
Date: 9 December 1686 Case No. No 13a.
A base infeftment was taken on a certain day, and a public infeftment on a comprising the next. The compriser alleged the base infeftment could not be clothed with possession till a term succeeding, and then was a medium impedimentum. But possession having been attained at that term, the soonest possible, the base right was preferred.
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Carse reported the case betwixt Sir Andrew Ramsay of Abbotshall, and Alexander Chaplain and Kinloch, who objected against one of the apprisings he produced, That the decreet of comprising, and the charter and sasine, were all upon one day, viz. the 29th of June 1655, which was impossible. Answered, That the act bringing in all comprisings, led within year and day, not being then made, creditors used great haste to be the first appriser, (the second carrying nothing but the jus reversionis of the first); and, therefore, before the court of comprising was held, they had the decreet of comprising, and the charter extended in mundo, ready for the subscribing; and then they had but fifteen miles to ride to Waughton to take sasine; so all this was done in June, when the day is at the longest.——The Lords sustained the comprising and diligence, unless they would offer to improve it as false.
January 25. 1687.—The case of Sir Andrew Ramsay of Abbotshall, contra Hary Kinloch and Alexander Chaplain, mentioned 9th December 1686, was reported by Carse. This was a competition between a base infeftment, taken on the 28th of June 1655, and a public infeftment on a comprising, taken the very next day thereafter; and so preference was craved on it, as being public before the base infeftment had apprehended possession, or could be clothed therewith, which, at the soonest, was Martinmas 1655; and so it was a medium impedimentum interveniens.—Alleged, The 105th act 1540, against base infeftments, was only where they were simulate, which this was not; and it is offered to be proved, that it was clad with possession at the term of Martinmas subsequent to the sasine; which was as soon as per rerum naturam could be, and so he was not in mora.—The Lords inclined to sustain this as relevant to prefer the base infeftment, in respect of several former decisions, viz. Durie, 13th February 1624, No. 4. p. 1276.; and 2d July 1625, Raploch, No 5. p. 1277.; and Stair, 26th July 1676, Ellison, No 12. p. 1285. Then Abbotshall alleged, That he only possessed by virtue of his assignation to the mails land duties, before his sasine; which was repelled in Durie, 24th February 1636. Oliphant, No 24. p. 1294. 2do, That the term of payment of the rents in that barony of Auldcambus was Lambmas, by their tacks; and so he was in mora, not being clad with possession at the Lambmas 1655.——The Lords ordained this last point to be further heard: But Abbotshall, of consent, found his first allegeance relevant, that he was clad with possession at Martinmas 1655.
Fol. Dic. v. 1. p. 87. Fountainhall, v. 1. p. 436. & 442.*** Harcarse reports the same case:
1687. February.
Henry Kinloch having uplifted mails and duties at Whitsunday 1654, from the Tenants of Waughton, by virtue of an heritable bond (in form of) a proper wadset in January preceding, containing an assignation to mails and duties; and having taken a base infeftment, June 28, 1655, Sir Andrew Ramsay both led and was infeft upon an apprising the day after.
In a competition, it was alleged for the appriser, That he was preferable, as having the first public right.
Answered: That the wadsetter is preferable, as having the first infeftment; and his right is public by possession before and after infeftment. 2do, The wadsetter's right was clothed with possession at Martinmas 1655, the first term after the infeftment.
Replied: Any possession anterior to the infeftment could not clothe it. 2do, Whatever favour may be indulged to annualrenters doing all possible diligence, at the first term, to be preferred, no such thing can be claimed by Henry Kinloch, a proper wadsetter, who was in mora for not taking infeftment sooner, especially in a competition with Sir Andrew's legal diligence, that is more favourable than a voluntary right.
Duplied: No difference is to be made between a base right property and a right of annualrent; nor is it material whether the intervening public right be voluntary, or a legal diligence, since the year 1617, when all infeftments became some way public by registration; which is a better notification to the lieges than a citation, or paying a term's annualrent upon discharge, which, though latent, will clothe an annualrent with possession.
The Lords preferred the wadsetter, as having done sufficient diligence at Martinmas.
*** Sir Patrick Home reports the same case:
November 1686. Sir Andrew Ramsay as being publicly infeft in the lands of Auldcambus, pursued a reduction against Henry Kinloch, of a wadset, granted by the Laird of Waughtoune, of a part of these lands, upon these reasons: That albeit the defender was infeft upon the infeftment wadset, one day prior to the pursuer's public infeftment, yet the defender's right being but a base infeftment, not clad with possession before the pursuer's public infeftment, it was null and reducible by the 105th act of Parliament 1540; by which, base infeftments, not clad with possession, are presumed to be simulate, and posterior public infeftments are declared preferable thereto, and was so decided, 24th February 1636, Oliphant, No 24. p. 1294. where the Lords preferred a posterior public infeftment to a prior base infeftment not clad with possession.—Answered, That the defender being infeft, albeit but a day before the pursuer's public infeftment, yet his base infeftment cannot be reduced, as not being clad with possession before the pursuer's public infeftment, seeing there was not a term intervened at which he could have gotten payment of his annualrent before the pursuer's public infeftment; and the presumption of simulation is only in that case, where a party is infeft base, and that term passes at which he might have used diligence for recovering payment, and clothed his right with possession, and was negligent; but that there was no term past after the base infeftment, and before the public infeftment. As, in this case, the pursuer's public infeftment being the very next day after the defender's base infeftment, it was impossible for the defender to have gotten payment of a term's rent; but at the next term thereafter he did use diligence and got payment of the term's rent; which was sufficient to clothe his right with possession, and to prefer his right to the pursuer's; and which has been several times so decided, and particularly the 2d July 1625, Hamilton of Raplock against the Tenants of Letham, No 5. p. 1277.; and 26th July 1676, Captain Ellison against Carmichael, No 12. p. 1285.: and the case of Oliphant against Oliphant, No 24. p. 1294. does not meet the case, because in that case the first base infeftment had not obtained possession by payment of a term's annualrent subsequent to the sasine; but only had received payment of a term's annualrent, due by the bond preceding the base infeftment; and the party was that publicly infeft had attained to the possession, and gotten payment of the rents for the next term subsequent to the infeftment, and several years right thereafter.——The Lords preferred the base infeftment, the defender proving, that he got payment of the next term's rent, subsequent to the infeftment at that term, or shortly thereafter.
