Precept and Instrument of Sasine disconform to the Disposition. - Charter disconform to its Warrant.
Sir Archibald Grant v. Grants
Date: 19 June 1750 Case No. No 43a.
A sasine was sustained, bearing one delivery of the symbol to a bailie, for several distinct annualrents.
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Robert Grant of Tilliefour, by three heritable bonds, granted to several of his creditors, annualrents effeiring to their respective sums, commanding his bailie to give to A. sasine of such an annualrent, and to B. sasine of such an annualrent; and so of several, contained in the same bond; which was executed, as the sasine bore, by the bailie's giving to C. “as procurator for, and in name and behalf of A. B. &c. heritable state and sasine, &c. of the said lands, with the pertinents, or of the foresaid yearly annualrents; or such annualrents as should by law correspond to the respective principal sums, & c. and that by deliverance to the said C. in name and behalf foresaid, of earth and stone of the ground of the said lands, and a penny money for the said annnalrents.”
He afterwards granted an heritable bond to Mr William Grant, Advocate, for himself, and as trustee for his brother, Sir Archibald Grant of Monymusk, for two sums which he respectively owed them.
The Lords, as is observed, 10th November 1748, No 71. p. 949. “Found the bonds of corroboration made and executed by Robert Grant of Tilliefour, to his creditors, were fraudulent, devised and made with intent to prefer them to Sir Archibald Grant and his Majesty's Advocate, anterior lawful creditors; and, therefore, reduced the said heritable bonds of corroboration, and the infeftments following thereupon, ad hunc effectum, to subsist only, and come in to be ranked pari passu with Sir Archibald Grant and Lord Advocate's infeftment.”
Objected, further, There is granted to each of the creditors a distinct and separate annualrent effeiring to his sum, and the bailie is commanded to give to each of them sasine thereof; which ought to have been done separately and distinctly; whereas, the symbols were once delivered to the procurator, for the whole.
Answered, The sasine is well granted, and according to practice, when separate interests are to be secured; as in rights to husband and wife, in conjunct fee, and to different persons, in fee and liferent; and, if executed otherwise, would not have answered the debtor's intention, which was to secure his creditors pari passu; whereas, the one to whom delivery was first made would have been preferred; and thus the objectors themselves are infeft.
Replied, Persons partially interested in the same right, as fiars and liferenters, may be thus infeft; and also one right may be given to a person for the use of several, which will bring them in pari passu, and this is the case of the pursuers; but the creditors have each a distinct and separate annualrent.
The Lords repelled the objection.
Reporter, Shewalton.Act. A. Macdowal.Alt. R. Craigie.Clerk, Forbes.
D. Falc. v. 2. No 140 p. 164.
