Subject_1 ANNUALRENT, INFEFTMENT OF. Subject_2 In what manner an Annualrent-Right may be Extinguished.
Sir William Hope, and the Heirs of Mr Mark Lermont, Advocate, v. Mr William Gordon of Balcomy
Date: 2 January 1705 Case No. No 12.
An infeftment of annualrent, is a species feudi, which cannot be vacated to the prejudice of a singular successor, unless by some deed entering the record; although a resignation ad remanentiam be not necessary.
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The Lords advised Sir William Hope, and the heirs of Mr Mark Lermont, advocate, against Mr William Gordon of Balcomy. Mr Robert Lermont having several infeftments of annualrent, out of the lands of Balcomy, in his person, he dispones them to Mr Mark Lermont, who transfers them to Sir William Hope; and he, in the ranking of the creditors of Balcomy, craving preference on these rights, it was contended by Mr William Gordon, That Sir William could never compete on these infeftments; because Mr Robert Lermont, his author by progress, had a long possession and intromission with the rents of the lands for many years together, by which not only his current annualrents, but even the stock and principal sums in his infeftments were more than paid; and which, being proven, must extinguish not only against him, the intromitter, but likewise against Mr Mark Lermont and Sir William Hope, though they be singular successors, for onerous causes.—It was alleged for Mr Mark's heirs, and Sir William Hope, That whatever Mr Robert's super-intromissions above his annualrents might operate against himself, to make him liable, or to extinguish his rights; yet that can never meet the defenders, who are his singular successors and assignees for onerous causes; for an infeftment of annualrent is a species feudi, and constituted by a sasine in a public record, and cannot be destituted nor taken away, but by some deed going to a register, for securing of purchasers, seeing unumquodque eodem modo dissolvi debet quo colligatur; and the 16th act of Parl. 1617, imports it, though it does not expressly mention infeftments of annualrent; and Sir George M'Kenzie, in his observations on that act, affirms they are comprehended under the words of “renunciations” of wadsets, and grants of redemption; and if it were otherwise, our registers, which are the peculiar glory of our nation, should be very defective and unsecure; and the nature of this right imports as much, that an annualrenter can intromit no farther than for his current annualrents, and if he uplift ultra, then it only resolves in a compensation against himself and his heirs, that exceptione doli he must impute it to his principal sum, or else be liable to refund it to the other creditors, annualrenters or adjudgers, who can make him repay what he uplifts above his own annualrent; but it can never be obtruded against his singular successors; yea, the Lords have been so nice, that it has been debated, that a registrate renunciation could not extinguish an infeftment of annualrent against a third party, without a resignation ad remanentiam; and though the Lords sustained the registered renunciation without a resignation, yet this shews there must be some public deed going to a register, necessary to certiorate the lieges who acquire such infeftments of annualrents; and that thus it was found, 27th July 1626, Anstruther against Black, Durie, p. 230. voce Assignation; 23d November 1627, Dunbar against Williamson, No 9. p. 570.; and 7th January 1680, M'Lellan against Mushet, No 10. p. 571. It is true, redeemable rights of property, wadsets, and apprisings, may be extinguished by super-intromission, against singular successors; but then both our statutes and the nature of the right allow them to intromit towards their satisfaction, which is not so in infeftments of annualrent.—Answered for Mr William Gordon, That there did not seem to be a more incontested principle in our law, than that super intromission extinguished annualrents in toto; and this is consonant both to the analogy of the Roman law, the current of our decisions, and the opinion of our best lawyers. As to the first, we have it in l. 1. 2. et 3. C. de pignorat act. Fructus ex pignore percepti, si sufficiant ad totum dissolvendum, tunc imputantur in debitum, cessat actio, et redditur pingus. As to the second, there is a close and pointed decision, 4th February 1671, Wishart contra Arthur, Stair, v. 1. p. 714. voce Payment; where intromission even with money-rent was found probable by witnesses, to extinguish even the principal sum contained in an infeftment of annualrent. And for the opinion of our lawyers, Stair is very distinct on the head, lib. 2. tit. 2. and tit. 5. that singular successors in annualrents cannot be secure by inspecting the registers, but run the hazard of extinction of the rights by their author's intromission.——The Lords considered this case had not yet been in terminis decided; for that of Arthur was against the intromitter's heir, and not in the case of a singular successor; and therefore they laid down these points that were uncontroverted, that they might come to the precise and neat question. 1mo, It was yielded, that a registrate renunciation without necessity of a resignation, extinguished an infeftment of annualrent quoad omnes effectus, et contra omnes mortales, as well singular successors as others. 2do, It was also conceded, that super-intromission was relevant to extinguish against the party himself and his heir, 3tio, The question here was not, where one infeft in an annualrent gets payment out of an extrinsic subject, and a different fund from the rents of the lands out of which the rent is upliftable; but the precise case was, Whether intromission of an annualrenter with the mails and duties of the lands wherein he stands infeft, more than pays his current annualrents, will be imputed to absorb and exhaust his principal sum against a singular successor? For that it will extinguish his annualrents, even in a competition with his assignee for onerous causes, was yielded; but the Lords, by plurality, found such super-intromission above his annualrents, was not imputable in sortem, in prejudice of a singular successor; for some thought it hard that private latent discharges, whereof there was no known way to bring them to the knowledge of purchasers of such infeftments of annualrents, should extinguish the right when it came into their persons; and if so, then much less intromission to be proven by witnesses ought to do it, especially after a tract of thirty year's silence. Though Moses's judicial law permits every thing to be established on the testimony of two or three witnesses; and the delivery of victual falls more under the senses than payment of money-rent, which can be done very clandestinely, and requires the presence of none but the debtor and creditor allenarly; See President Gilmour's Decisions, Whitekirk contra Ednem, (No 33. p. 25. voce Compensation.—Retention.) But the Lords found nothing but a public registrate writ could here militate against a singular successor. (See Legal Diligence. See Payment.)
