A base infeftment of annualrent in burgage lands, given by a Bailie of a burgh, as Bailie in that part, and the Clerk as a common notary, was sustained.
A liferent infeftment in burgage lands, upon a precept of sasine in an heritable bond, to be holden blench of the granter, was sustained.
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Bessey Bennet and James Sands, her first husband, being infeft in an annualrent of L. 48, out of some tenements and burger acres in Culross, belonging to the deceased John Sands, upon a precept of sasine in an heritable bond for the principal sum of 1200 merks, granted by John Sands to James, his eldest son, and Bessey Bennet, his spouse, the longest liver of them two, in liferent, and to the children of the marriage, in fee; Bessey Bennet and Mr William Drummond, her present husband, for his interest, craved to be preferred in a competition of John Sand's Creditors.
Alleged for the other Creditors, 1mo, Bessey Bennet's infeftment is null, not being given by one of the Bailies of the burgh, and common Clerk thereof as such, upon resignation, in the terms of the act 27th, Parl. 1. James VI. and Young against Town of Montrose, 15th Dec. 1629, voce Superior, and Vassal; but a base infeftment, granted only by a Bailie of the burgh, as Bailie in that part, and the Clerk as a common notary, upon a precept of sasine from the granter of the heritable bond, to be holden of himself blench; whereas, by a long tract of custom, a precept of sasine is never in use to be inserted in dispositions of burgage lands, but only a procuratory of resignation, 2do, Suppose base infeftments in burgage lands could be sustained, yet this cannot, because not recorded in the books of the shire, or general register, but in the Town-clerk's books, which are only a proper register of sasines, given to be holden burgage upon resignation in the Bailie's hands, as representing the community.
Answered for Bessey Bennet, The act of Parliament, in King James VI.'s time, dischargeth private infeftments to be given by any other than the Bailies and Clerks of the burgh, as being a casualty due to them; who cannot complain for being deprived thereof, when they voluntarily give sasine upon the granter's precept. The decision, 15th December, 1629, relating only to the tinsel of superiority, hath no contingency with the point. 2do, It is ridiculous to assert, that any infeftment within burgh, whether base or not, should be registered in the shire, and not in the town books. 3tio, Whatever might be pretended for transmitting the property of burgage tenements by public resignation, nothing could hinder a servitude upon these to pass by a base infeftment; especially considering that this is only a temporary right of liferent provision, and the precept of sasine was executed by the Bailie and the Clerk, and recorded in the town Court books, in the terms of the act of Parliament.
The Lords sustained the infeftment in favour of Bessey Bennet.
