A preferable creditor can do no voluntary deed to prefer one secondary creditor to another; and if he take payment out of one subject, he is bound to assign to postponed creditors.
The Lady Gunsgreen v. Helen Lauder, and Mr James Lauder, Provost of Haddington, her Husband
Date: 1 February 1693 Case No. No 21.
A liferentrix, by annuity, was infeft in two separate subjects, one of which was also affected by a second infeftment. The Lords declared they would ordain her either to assign her right on payment, or to do diligence first against that subject, in which the secondary creditor had no interest.
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The Lords would not force the Lady, in this case, to assign upon payment, having sundry rights in her person, unless all were satisfied; and thought it not sufficient to declare, in the assignation, that it should not prejudge the other rights; but they found, that the Lady having two subjects out of which she could lift her annualrent, in the one of which Helen Lauder was infeft, and in the other not; though regulariter the liferentrix could not be restricted to one of the lands more than to the other, yet the Lords declared they would ordain her to assign her right on payment; or else to distress and do diligence first against that land wherein Helen Lauder had no right; with this quality, that what after diligence, she could not recover out of that land, she might recur pro tanto against the other; and where there is a concourse of creditors, the Lords use to allow the first annualrenter to poind within 20 days of the term, and the second not to have access till that space be expired.
Fol. Dic. v. 1. p. 222. Fountainhall, v. 1. p. 552.
