Alexander Duncan of Strathmartin v. Mr Alexander Graham of Methie
Date: 22 July 1709 Case No. No 15.
An assignation to a tack, in security of a debt established by an infeftment of annual-rent, was found not to make the assignee possessing by virtue thereof liable to intromit beyond his annualrent, or accountable for more.
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In the ranking of the Creditors of Wintoun of Strathmartin, Alexander Duncan, who had a disposition of the lands from the debtor's heir, objected against an interest produced by Mr Alexander Graham, viz. two heritable bonds with infeftment granted to his author by Wintoun, that the same must be understood satisfied and paid, in so far as he, the common debtor, assigned Alexander Graham's author, for the more secure payment of his money, to a tack of lands paying more duty than his annualrent amounted to, by virtue whereof he entered to the possession, and ought, or is presumed to have continued to uplift the whole rents; unless he can make appear, that he was debarred by another creditor.
Answered for Alexander Graham; His author intromitted with no more than satisfied the annualrent of his money, nor was obliged to intromit with, or count for more of the rents; seeing he debarred no other creditor from access thereto.
The Lords found, that the assignee was not liable to intromit beyond his annualrent, nor countable for more. For they distinguished betwixt a voluntary right in security, and a legal right by diligence of apprising or the like.
