A disposition in security, and assignation to the tents of lands, followed by infeftment, found preferable to an arrestment of these rents.
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Mr Walker of Saintford granted to Dr Webster an heritable bond over his estate for L. 2000, containing an assignation to the mails and duties, on which the Doctor was infeft, but did not enter into possession, nor intimate the assignation to the tenants.
Another creditor of Mr Walker's was Donaldson, to whom he owed L. 500 by a personal bond, and who used arrestments in the hands of his tenants.
In a process of multiple-poinding, a competition ensued between Webster and Donaldson; the one claiming a preference upon his heritable right, the other on the arrestments used by him.
Pleaded for the heritable creditor: The design of this disposition in security, and assignation to the rents of the debtor's lands, was, agreeably to the nature of such a right, to give the creditor a preferable title to the lands for security of the sum lent, and to the rents of them for security of the interest, as it should become due upon that principal sum. This security having been completed by infeftment, which likewise serves the purpose of intimating the assignation, must be effectual; November 2. 1748, Creditors of Kelhead contra Lady Kelhead, No 102. p. 2901. It is true, the property of the lands cannot be attached but by adjudication, so as to be applied for payment of the principal sum by sale or otherwise; nor can the rents be brevi manu levied from the tenants, if they refuse to pay, without a process of mails and duties, or of poinding the ground. But by neither of these processes is the creditor's right rendered more complete in itself, than before. It is only carried into execution, as the proprietor's own right would be in the same situation; for neither could he brevi manu compel payment: and the annualrenter is as well entitled as he to receive voluntary payment.
Answered for the arrester: The right in security, apart from the assignation to the mails and duties, confers no power of levying the rents; Stair, b. 2. tit. 10. § 1. Nor can this assignation be now effectual, as it neither has been intimated, nor has the creditor been in possession; Gray contra Graham, No 1. p. 565. Nay, though the assignation had been intimated, it could not avail the creditor; Erskine, b. 3. tit. 5. § 5.
Besides, the rents attached by the arrestments are due for crop 1778; and as the creditor's annualrents for that year are already paid, the rents of the lands for the same year have been disburdened of them.
The Court considered the infeftment on the heritable bond as equal to an intimation of the assignation to the mails and duties; and that the heritable creditor was preferable to the arrester, not only for the annualrents, but for his principal sum also.
Accordingly, though some of the Judges thought there ought to be a distinction on account of the interest for the year, the rents of which were arrested, being already paid, this idea was in general disregarded.
The Lords found the heritable creditor preferable on the rents in medio.
Lord Ordinary, Monboddo.For Heritable Creditor, H. Erskine.For Arrester, Elphinston.Clerk, Orme.
Fol. Dic. v. 3. p. 152. Fac. Col. No 114. p. 213.
