William Baillie of Lamington v. Sir William Menzies of Gladstains
Date: 25 January 1711 Case No. No 15.
An annualrenter's intromissions applied not only for satisfying the bygone annualrents, but even for extinguishing the principal sum for which the infeftment of annualrent was granted, although that infeftment was then in the person of a singular successor, who had adjudged it.
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In the competition of the Creditors of Begbie, betwixt Sir William Menzies, as having right by progress from Alexander Baillie to an infeftment of annualrent, and Lamington, as having right to a subsequent apprising; the former pleaded preference upon the priority of his right; which Lamington alleged was extinguished by payment, in so far as he offered to prove by witnesses that Alexander Baillie, Sir William's author, did enter to the total possession of the room of Hillend in the year 1667, and continued therein till the 1680.
Answered for Sir William Menzies; By constant practice in all processes relating to extinction of debts by payment, money rent is proved scripto vel juramento, and the victual prout de jure; for as our law doth not allow witnesses to be received, where writ is, or ought to be adhibited; so the payment of money, which is subservient to all uses, and the common fungible that supplies the place of every thing prestable, is not to be proved by witnesses, but only by writ or oath of the receiver, since by-standing witnesses may be apt to mistake the occasion and design of the payment.
Replied for Lamington; Though payment of money should regulariter be proved by writ or oath, because obligements to pay money are commonly so constituted; yet witnesses may be allowed to prove that a creditor entered to a total possession at a certain time, and continued therein so many years; especially in this case, where Sir William took himself (beyond what his right did carry) to a total possession for the space of 13 years; and where he thereafter, in evidence that he was paid both of his principal sum and annualrent, did quietly and voluntarily cede his possession to the common debtor; which is confirmed by Sir Thomas Hope in this Title Probation, and by several practicks, as 15th, December 1622, Declarator of the Laird of Foulis's escheat, voce Proof; 16th December 1626, Finlayson contra Executors of Lauder, Ibidem; 20th January 1627, Ross contra Fleming, Ibidem; 11th July 1628, Arbuthnot contra Lighton, Ibidem; 4th February 1671, Wishart contra Arthur, No 3. p. 9978. 2do, There is the same hazard in misapprehending the design of delivering victual, as there is of mistaking the reason of paying money; for persons who see victual delivered cannot know what was actum et tractatum betwixt the giver and receiver, more than in the case of money; seeing the former, as well as the latter, may be delivered upon many accounts, as in payment, in loan, or for security of performance of some deed; so that there is a notable difference betwixt proving payment of a sum contained in a bond for extinguishing the right and this case; for though the witnesses depone that such a sum was delivered de manu in manum, it were impossible for them to clear upon what account that was done, as not falling sub sensu. But here Lamington doth not so much pretend to prove payment of Sir William Menzies's heritable bond by witnesses, as only to prove his author's entry to the total possession of a certain piece of land to oblige him to answer for the known rental thereof, which in consequence will extinguish the infeftment of annualrent, unless the possession can be ascribed to another title, or otherways compted for and balanced by the intromitter.
Duplied for Sir William Menzies; The practick 4th February 1671 is but a single decision, which is over-ruled by subsequent, contrary practice. Unless we distinguish betwixt possession within burgh, which can be no other than money rent, and possession in the country, which may be either of money or victual; 2do, The reason why money is not probable by witnesses, holds equally in a total, as in a partial possession; for though the argument from the total possession may hold in the case of an appriser or wadsetter, who have a title to possess; it cannot be of any weight against an annualrenter, who had no title to possess, and whose possession can never be presumed to exceed his annualrent.
Triplied for Lamington; He is not arguing from presumptions, but from a clear proof, that Sir William and his authors have uplifted the rents, and therefore must compt for the same; and it is wild to think, that an intruder without a title should be in a better case than those who by law are authorised to possess.
The Lords found probation by witnesses of a total intromission of 12 or 13; years possession of victual or money rent, where there is no intromission by the common debtor or co-creditor, and the intromitter ceding possession to the common debtor, relevant to make the intromitter comptable for the rental both of money and victual.
Thereafter, 20th February 1711, It was alleged for Sir William Menzies, That his author's intromission and ceding the possession to the common debtor, cannot be extended to extinguish the principal sum for which the infeftment of annualrent was granted, in prejudice of Sir William, a singular successor thereto by adjudication, but only to extinguish the bygone annualrents; the annualrenter having paratam executionem by poinding to recover these, but no execution for recovering his principal sum. If latent receipts and discharges, or, which is worse, intromission with rents, should extinguish infeftments, quorsum did the act 16th Parl. 1617, appoint renunciations of wadsets and grants of redemption to be null, if not registrated. True, an annualrenter having uplifted his debtors effects to the value of his principal sum, will be excluded personali objectione from seeking twice payment; but a successor can only be barred from the principal sum by a registered renunciation, 7th January 1680, M'Lellan contra Mushet, No 10. p. 571.; and in the case of Mr Mark Lear-month's Children contra William Gordon, (No 13. p. 9989.)
Answered for Lamington, 1mo, No law requires a renunciation of an infeftment of annualrent to be registred, and though registrarion were necessary, an infeftment of annualrent may be extinguished, without a renunciation, by the creditor's intromission, Wishart contra Arthur, No 3. p. 9978, as adjudications and apprisings, though recorded, may be so extinguished. Besides, the intromission here was fully as public a mean of extinction as a registered renunciation. The decision betwixt M'Lellan and Mushet doth not meet; for there the Lords decided secundum ea quæ propon ebantur; and the other decision betwixt Lermonth and Gordon shall be answered particularly when Sir William doth more particularly demonstrate the decision by its date, and where to be found.
The Lords found, That Alexander Baillie the annualrenter's intromissions are not only to be applied for satisfying the annualrents of the principal sum in the infeftment, but even for extinguishing the said principal sum, notwithstanding that infeftment be now in the person of a singular successor.
