Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 SASINE.
Subject_3 An Infeftment, in a right of annualrent granted by a person not infeft, proceeding upon the precept contained in a disposition of the property in favour of the granter of the annualrent, was found inept.

John Mitchell
v.
David Adam

Date: 16 July 1767

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[Faculty Collection, IV., p. 291. Dictionary, 14,335.]

Pitfour. As Mitchell was infeft on John's precept, I do not see that the assignation was inept. A procuratory and precept may be assigned qualificate. An annualrent may be established in a burgage holding, although there cannot be subaltern infeftments in such holding. The objection to the want of registration is only competent to one having a prior right. A hundred heritable bonds, and as many adjudications, will be overturned if this interlocutor stand.

An adjudication is no more than a right in security for payment. If my debtor is not infeft, I must take his author's procuratory and infeft myself on it, and upon that obtain charter of resignation from the superior. The next creditor will do the same as to the reversion, so that the precept will never be exhausted.

Elliock. A sasine is a good right, quoad the granter; but, if not registered, is not good quoad extraneous persons.

Kennet. The son might have conveyed either the whole or a part of the precept; but this has not been done. An assignation of a precept will not do for establishing an infeftment of annualrent.

Gardenston. If we hold that it is not in the power of a man, having a personal right, to grant a disposition which may be made real, the consequences would reach far.

Coalston. One having a personal right may denude himself totally or qualificate: If so, why may he not grant a right of annualrent. If Robert Watt had granted a disposition in security, and infeftment had been taken on the precept, it would have been good; why might he not also have granted an infeftment of annualrent?

Barjarg. A disposition in security is different from a disposition of an annualrent.

Monboddo. A right to a precept of sasine is a personal right: it may be divided like a real right; it is assigned in right of the person having the real right. The example of an adjudication is in point: it is a redeemable right in security, by the operation of the law, as much as an infeftment of annualrent is a redeemable right by the operation of the party.

President,—observed that the fact has been imperfectly stated; for that the disposition and infeftment bore earth and stone, as being an absolute disposition of lands.

The Lords altered and preferred Mitchell; but remitted to the Lord Ordinary, (Kennet,) to hear parties upon the point of registration.

Act. J. Douglas. Alt. J. Grant.