Paction by Declarators, Back-bonds, &c. relative to Personal rights; when real; when personal?
Lady Kinminity v. Sir John Gordon
Date: 9 December 1747 Case No. No 27.
A second assignee to a personal right, which he first completes by infeftment, carries the profits accruing thereon, between the date of his assignation and infeftment.
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George Murray of Polrossy granted an heritable bond to Sir John Gordon of Embo, for 20,000 merks Scots; whereupon he was infeft 1722, and assigned it to Gordon of Garty, who never compleated his title by infeftment, but, 1729, adjudged the estate for this, and a further debt of 2000 merks, on which neither was he infeft; but having, 1731, borrowed L. 6000 Scots from Robert Gordon, brother to Sir John, he obliged himself to infeft him in an annualrent, correspondent thereto, out of the said sum of 20,000 merks, assigning him to as much thereof, and of the annualrent due to him therefor, as would satisfy the said annualrent of L. 6000, and this right came into the person of Sir John Gordon, by succession to Robert.
Alexander Sutherland of Kinminity, 1734, purchased from Gordon of Garty, this heritable bond and adjudication, and transferred in trust for himself to Gordon of Bucky, who was infeft, 1737, upon the precept in Sir John Gordon's disposition to Garty.
Mary Sutherland, Lady Kinminity, as executrix to her husband, pursued Sir John Gordon for the rents of part of the estate of Polrossy, which he possesed by tack; to which he pleaded, a preference in his own right, for that Garty having only a personal right to the heritable bond, when he transferred it to Robert Gordon, this must give a preference to him on those rents which fell due betwixt the date of that deed, and the time when Bucky's posterior disposition was compleated by infeftment; although it was owned, that agreeably to what was found between Bell of Blackethouse and Gartshore, No 80. p. 2848. Bucky would have been preferable from the date of his infeftment.
Sir John also pleaded compensation on a bill of Kinimnity's, bearing annualrent from the date, to the term of payment.
The Lord Ordinary, 16th July 1745, “preferred the Lady Kinminity to the tack-duties, which fell under her husband's disposition, and repelled the ground of compensation.”
Pleaded in a reclaiming bill; That the right being personal in Garty, the personal conveyance was effectual, and carried the profits, anterior to the time when the subsequent conveyance was made real by infeftment.
Answered; That it is infeftment which determines the property of lands, and the rents must follow the subject; and granting, if a question had occurred before infeftment, the first right must have been preferred, this would have been owing to their being both considered as assignation to mails and duties, where the first diligence would be preferred.
The Lords adhered.
Act. Ferguson.Alt. Lockhart.Clerk, Murray.
D. Falconer, No 221. p. 305.
