Scottish Court of Session Decisions

Subject_1 ANNUALRENT.

Creditors of Langtoun
v.
Stewart, &c

1751. June 11, 25.
Case No. No. 13.

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A preferable debt of L. 1000 sterling on this estate, with annualrent from 1690, being conveyed by Archibald Cockburn, younger of Langtoun, to the Society for Propagating Christian Knowledge, in 1723, in security of L. 1000 sterling, then borrowed; and his father Sir Alexander, (who was served heir cum bencficio,) and he being debtors in relief to Houndwood in about L.700 sterling, they in 1730 joined in bond of relief to him, containing an assignation by Archibald to the annualrent before 1723, of the L.1000 conveyed to the Society, which they held in trust for him,—and this assignation Houndwood intimated to the Society. The Society in April 1732, on the narrative of that trust, made over this annualrent to Archibald, but saving a preference to themselves. 18th May 1732, Archibald Cockburn assigned these annualrents to Patrick Crawford in security of a debt of L.1341. Crawford thereafter attempted to poind Langtoun's crop and furniture; and being stopped by Stewart, Inglis, &c. the tacksmen, they were found liable for the debt and paid it, and got assignation in 1738, and in 1739 pursued poinding the ground. In the competition betwixt these two assignations, Stewart and the other tacksmen objected to Houndwood, that assignation and intimation were not habile to convey bygone annualrents of an heritable debt or right of annualrent, which could only be done by possession or poinding the ground; 2do, That though that were habile, and though Sir Alexander's signing the deed did supply intimation to him, that was not sufficient, because the right was not then in Archibald Cockburn, and jus superveniens does not hold in personal rights: and there was no intimation of Axchibald's right in 1732 till their process of poinding. But as Archibald's right to the Society was only in security of a debt whereby the reversion remained with him, and all that was over that debt; we found Houndwood's right sufficiently completed, and therefore preferred him; and 25th June adhered, and refused a reclaiming bill without answers.