The acceptance of a new real security, without renunciation, does not innovate the former one.
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John Mason granted an heritable bond to James Anderson, on which he took infeftment. Afterwards Rutherford likewise obtained from Mason an heritable security over the same subject. James Anderson died, and was succeeded by Elisabeth Anderson, who delivered up to Mason her predecessor's bond, though not accompanied by a discharge or renunciation, being herself in a state of apparency; and in return received a new bond by Mason in her own favour, upon which infeftment followed. She afterwards recovered the possession of the old bond, and likewise of the infeftment, which had not been in the custody of Mason. In a competition of Mason's creditors, Rutherford claimed a preference before Elisabeth Anderson, on this ground, That the heritable right granted to her predecessor, which was prior to his own, had been innovated and done away by the security obtained by herself, and which was posterior; so that this question occurred, Whether, by substituting the one security for the other, but without a renunciation, an extinction of it had been effected.
Pleaded for Rutherford; By accepting the latter bond, Anderson directly relinquished and renounced the preceding security. In other words, this obligation was changed into the other by novation; l. 1. pr. D. De Novat; Stair, B. 1. Tit. 18. § 8.; Erskine, B. 3; Tit. 4. § 22.; Select Decisions, 14th Feb. 1752, Duke of Norfolk, No 7. p. 7062.
Answered; The feudal right constituted by the prior bond and infeftment still subsisted, notwithstanding the mere delivery of the bond to the debtor. It could not be extinguished otherwise than by a proper discharge and renunciation, which was not given, nor could proceed from an apparent heir. Of course, the right might have been adjudged at the instance of any creditor of James Anderson, or it might have been taken up by any supervening heir.
The Lord Ordinary found, 'That the former debt was innovated; and therefore preferred Mr Rutherford.' But
The Lords altered that interlocutor; found that innovation had not taken place; and preferred Elisabeth Anderson.
Lord Ordinary, Hailes.For Rutherford, Nairne.Alt. Buchan-Hepburn.Clerk, Colquhoun.
Fol. Dic. v. 3. p. 325. Fac. Col. No 205. p. 320.
