The Lords found a base infeftment sufficiently clothed, by a discharge bearing only receipt of the annualrent of a personal bond, without any relation to the heritable right on which the sasine followed, and paid out of other lands.
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Mersington reported Mr William Arnot, and other Creditors of Cunnochie, against Malcolm of Balbedy. The question was, Whether a base infeftment was sufficiently clothed with possession, so as to make it public, by a discharge bearing the receipt of the annualrent of the personal bond, but having no relation to the heritable right on which the sasine followed, and being paid out of other lands, and not those out of which it was upliftable.—Answered, By the 105th act, 1540, base infeftments were annullable, because of the suspicion of simulation, which could not take place here; for perinde est to what ye ascribe the payment, if it was posterior to the sasine, whether to the personal obligement, or real right; and esto the debtor paid the money out of his pocket, without relation to the lands and rents, it is all one; and was so found, 23d July 1667, Hume contra Hume of Kello, No 26. p. 1295——The Lords found Balbedy's right sufficiently clad with possession by the discharge produced.
Fol. Dic. v. 1. p. 89. Fountainball, v. 1. p. 713.
