Effect of registration on the pari passu preference of adjudication.
The want of allowance is no nullity.
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The Lords had found the Commissaries had committed no iniquity in sustaining Brown's adjudication; for they found it was before the out-running of the year and day of the liferent-escheat, and so would be preferable to the donatar; and that it needed no infeftment to give it preference, because it was within year and day of the first adjudication whereon infeftment had followed; and so it came in pari passu with it, and had a share by communication of its infeftment; and that their neglecting to allow and record it for the space of nine or ten years did not debar it of the foresaid privilege; because the not recordings by the act 1661, did only give it it posteriority to others adjudging after it, but recording before it; but was by decisions in 1664, and since, found to be no nullity; though the Lords were very sensible, that this was a defect in the act, and might prove very inconvenient where one neglected to record their adjudications for many years, and afterwards claimed a share of the mails and duties from the first adjudger, or the buyer, alleging, That being within year and day, they came in pari passu; and that here Oliphant, the donatar, had acquired in the first adjudication, and was in bona fide to think there was no other when he found it not recorded. But bona fides takes only effect passive in payment, but not in purchasing; because it is a voluntary act, et caveat emptor.
Fol. Dic. v. 2. p. 332. Fountainhall, v. 1. p. 539.
