Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Sir Alexander Cockburn of Lanton's Creditors v. Patrick Hepburn of Monkrig
Date: 12 December 1693
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The competition between Patrick Hepburn of Monkrig, and the other creditors of Sir Alexander Cockburn of Lanton, was reported. Hepburn craved to be preferred on his base seasine. They opponed, It was not clad with possession.
Answered.—That, after his taking of seasine, he had received half a year's annualrent of his sum; and, though it was for a term elapsed prior to the date of his seasine, yet it was sufficient to clothe his base infeftment with possession; seeing annualrent is not paid by virtue of the real right, but by the personal obligement in the heritable bond which is the ground and warrant of the seasine; and if a citation on a summons for poinding the ground will make it public, much more the actual receipt of annualrent. And here there was half a year's interest owing, after the seasine as well as before it; and if he had either given an indefinite receipt, or ascribed it to the payment of that half year subsequent to the seasine, it would have undoubtedly preferred him; ergo, it must do it here.
The other creditors replied, That nothing clad an infeftment with possession but only annualrent for terms due after the seasine; seeing nulla sasina nulla terra; and his ascribing it to the prior term has consumed his election, and manifested his design, that he cannot now recur.
The Lords, thinking the point somewhat new, resolved to hear it in their own presence; but inclined to find it not a public right.
