Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 COMPETITION.
Subject_3 Disponees in security with the disponer's personal creditors, who had executed a poinding of unripe crops.

Douglas Heron and Company
v.
John and Hugh Parker

Date: 8 August 1782

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[Fac. Coll. IX. 135; Dict. 2868.]

Braxfield. It is not much disputed, that, in a poinding of the ground, there would be a right to the crop; but it is said that this is a right of annualrent. It is an infeftment of annualrent, and also gives a disposition to the lands themselves, and so a poinding of the ground is competeut. The real creditor, in such a case, is preferable to the personal. In the case of Dr Webster, it was found that an infefter in annualrent might come in and claim a preference over a personal creditor as to rents of tenants. I do not see what difference it makes that the heritor himself, and not the tenants, is in possession. It is admitted by the respondents, that there could be no poinding of the ground, because no rent was due. This of itself shows that the creditor-infefter had a right to sequestrate.

Gardenston. I found my judgment on this simple proposition, that an infeftment in security goes to rents, but not to crops. A man may, by industry, make the produce of the ground ten times the value of the rent.

Kaimes. There is a material difference between the tenant and the proprietor. For the tenant is not debtor, but the proprietor is.

Monboddo. A poinding of the ground could not take place, because no interest was due. The creditor-proprietor under reversion had his remedy, both by affecting the rents and by removing the reverser, and entering into possession. This sequestration creates a hypothec, which a creditor cannot have.

Kennet. In the case of Dr Webster the only thing done was to prefer to the rents in medio.

On the 8th August 1782, “The Lords preferred Douglas Heron and Company;” altering their interlocutor of 2d March 1782.

Act. Ilay Campbell. Alt. A. Rolland.