Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 I sat in the Outer-House this week.
Thomson v. Williamson of Cardrona
Date: 16 July 1708
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Thomas Williamson in Peebles dispones a tenement lying there to one Thomson, bearing love and favour; but afterwards he makes another disposition of it, for onerous causes, to Williamson of Cardrona; and, in regard he was only apparent heir, he gives a procuratory to serve him, which the first disposition wanted; and on this Cardrona entered to the possession; and the house being burnt down, he rebuilt it. Thomson, resolving to perfect his right, applies to John Frier, one of the bailies, to cognosce his author heir, and then to infeft them both; which he refusing, as seeing no warrant, Thomson protests against him, and that his offer may be equivalent to an infeftment. Some time thereafter, Cardrona produces to the same bailie his disposition, containing not only a procuratory of resignation, but also to serve his author heir; which the bailie obeys, and infefts him. Upon this follow mutual reductions of one another's rights; and Thomson claims preference to Cardrona, though first infeft, because he had done all that law required of him, viz. to instrument the bailie on his refusal, for his partial gratification, in preferring one before another.
Answered,—1mo, Your right is gratuitous; mine is onerous. 2do, Was not obliged to infeft you; because you wanted a necessary mid couple, viz. a procuratory to serve your author. 3tio, If one bailie refused you, you might have applied to another; and though, in Exchequer, the presenting the first signature prefers to a posterior one first past, yet that is not the case here; for the bailie could not cognosce a man without a warrant from him.
Replied,—My disposition bore a sufficient warrant to serve him, by that general clause— “to do all that was necessary in the premises for perfecting my right.” Likeas, I had the writs and évidents of the lands to instruct the progress, and showed them to the bailie.
The Lords neither went on the latency of Thomson's disposition being kept up for many years, nor on its being gratuitous: for, if he had got the first in_ feftment, he would have been clearly preferable. But the Lords fixed on this point, That his disposition was defective, wanting a procuratory to serve, which Cardrona's had; and therefore preferred him: otherwise, the requiring the bailie would have been equivalent to any infeftment, had it not been for want of that step in the progress.
