Scottish Court of Session Decisions

Subject_1 BASE INFEFTMENT.
Subject_2 SECT. II.

Base Infeftments are preferred to one another, and to Public Ones, according to date, if steps have been taken, sine mora, to attain Possession.

Martin Stevenson
v.
Dobbie

Date: 30 June 1666
Case No. No 11.

A tenant obtained from his landlord, an infeftment of annualrent out of the lands, before Whitsunday. The first term's payment of annualrent was the next Martinmas. In the interim a creditor apprises, charges the superior, and insists for mails and duties. The tenant preferred. Intus habuit.

Click here to view a pdf copy of this documet : PDF Copy

Dobbie being tenant to James Stevenson of certain lands, he gets an infeftment of annualrent out of the same lands, before Whitsunday; but the first term's payment of the annualrent was Martinmas thereafter; after Whitsunday, and before Martinmas, Martin Stevenson apprises the land, the charges the superior, and there upon pursues for mails and duties. Dobbie excepts upon his infeftment of annualrent. The pursuer answered, That the infeftment was base, and before it was or could be clad with possession he had charged the superior; which was equivalent to a public infeftment. The defender answered; That a public infeftment intervening, before the first term of payment of the annualrent, did not prejudge the base infeftment, which could not be presumed to be private, or simulate for want of possession, till the term came, at which possession might be attained, or pursued for. 2 dly, The defender being in natural possession, from the very date of his sasine, intus habet, and he may retain his own annualrent, which begins to become due from date of his sasine, de momento in momentum, albeit there be a term appointed to pay accumulative; so that as the getting payment from the possessor of any part of the annualrent, or his obligement for the same, would be a possession sufficient; so the defender having the same in his own hand as possessor, it is equivalent.

The Lords found this member of the defence relevant, and had no necessity to decide the other point, whether the intervening public infeftment, before the first term, would exclude the base infeftment, without possession; wherein they thought that there was great odds, if the appriser's infeftment, or diligence, had been before Whitsunday, in respect the first term of the annualrent, was not the next term after the sasine; and so if it might pass one term, by the same reason it might pass ten terms, and be valid; because, in neither case, could possession or action proceed thereon, and therefore might be suspected of simulation; so that if the appriser's diligence had been before Whitsunday, the annualrenter could have no right to that term; and so the appriser would attain to the possession, and could hardly be excluded thereafter.

Fol. Dic. v. 1. p. 88. Stair, v. 1. p. 384. *** The same case is reported by Gilmour:

James Dobie in Dalkeith having a tack from James Stevenson; the heir of an acre of land, for some years, and ay and while he should be paid for 500 merks owing to him by Stevenson: Martin Stevenson, brother and creditor to the said James for a debt, comprises the said lands, and some other lands, from his brother; charges the superior to infeft him; and thereupon raises summons against the said James Dobie for mails and duties; who having proponed upon the tack, his allegeance was repelled, in regard the years of his tack were expired; and the clause ay and while is null, wanting an ish.—Thereafter he did allege, That for the said debt, and some other debts, owing by the debtor, he was infeft in an annualrent, before the pursuer's comprising and charge.—Answered, No respect to be had to the infeftment, being base, not clad with possession; nor could it be clad with possession, because the comprising and charge were prior to the term of payment of the annualrent; yea, and to the term from which the annualrent began to be due; and so the pursuer having a right public, (the charge against the superior being equivalent to a public infeftment,) he ought to be preferred.—Replied, That the defender was in possession of the land, out of which the annualrent was to be uplifted; and so, as possessor, he was heritor of the mails and duties, and consequently, of the annualrent payable furth of the mails, which is equivalent, as if his infeftment were formally clad with possession; nor was it necessary for him, before the term, to seek a decreet for poinding the ground, seeing he behooved to poind his own goods in that case; et intus habuit to pay himself by the mails.

The Lords preferred the infeftment of annualrent. See Tack.

Gilmour, No 186. p. 136.