Scottish Court of Session Decisions

Subject_1 BASE INFEFTMENT.
Subject_2 SECT. IX.

Possession of the Principal Lands held to be Possession of the Warrandice Lands.

Elizabeth Brown
v.
John Scot

Date: 9 January 1666
Case No. No 52.

In this case, where the infeftment of warrandice was of the same date with that of the principal lands; the Lords found, that possession of the principal lands validated the base right of the warrandice lands. This was posterior to the act 1617, or daining the registration of sasines.

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There being an infeftment feu granted of the lands of Inglistoun, as principal, and of the lands of Fingland, in warrandice thereof long ago, and infeftment taken of both principal and warrandice lands, in one sasine, registrate in the register of sasines, since the year 1617; thereafter the warrandice lands were disponed to the Earl of Traquair; and he, being publicly infeft, gave a subaltern infeftment to his vassal, who assigned John Scot to the mails and duties; who having arrested, insisted to make furthcoming: And likewise Elizabeth Brown having, after the eviction of the principal lands, arrested the rents of the warrandice lands, insisted to make the same furthcoming to her.—It was alleged, That the original infeftment whereupon the said Elizabeth Brown's right is founded, is a base infeftment; and as to the warrandice lands, never clad with possession, and the Earl of Traquair's right, whereon John Scot's right is founded, is a public infeftment holden of the King, which is always preferred to base infeftment, without consideration whether the public infeftment has attained possession or not, or how long; but much more in this case, where the public has attained possession, not only by year and day, but many years; and therefore is directly in the case of the act of Parliament 1540, cap 105. preferring public infeftments to prior base infeftments, not clad with possession.—It was answered, That base infeftments are of themselves valid, and before the said act of parliament, the first Infeftment made always the best right, whether it was holden of the disponer or of his superior; but that act of Parliament is correctory of the common law and feudal custom, which by the act itself, appears then to have been constant, and is only altered by the statute, upon the presumption of fraud; which is clear, both by the title against double fraudful alienations, and by the narrative, that diverse persons, after they have given private state and sasine to their bairns or friends, do thereafter give, for causes onerous, infeftment to other persons, and therefore such onerous posterior infeftments, if they attain possession year and day, are preferred to the said private infeftments; but in this case there is no presumption of simulation. 2dly, By several decisions alleged and produced, it is clear, that the Lords did prefer base infeftment of annualrent to posterior public infeftment of property, which intervened before the next term; so that the infeftment of annualrent could not attain possession; but if base infeftments, without possession, were invalid rights, the Lords could not have found so. 3dly, The Lords have allowed indirect and interpretative possession to be sufficient, not only in the case when liferents are reserved, that thereby the liferenter's possession is the fiars, though be never possessed himself, but even when liferents are not reserved; but that the base infeftment is thereby excluded from possession: So base infeftments granted to wives are preferred to posterior public infeftments, though the wives do not, nor cannot, possess during the husband's life; yet the husband's possession is counted the wife's possession; and if a person, infeft by a base infeftment, should pursue for mails, or duties, or removing; and were excluded by a prior liferent, constituted by the pursuer's author, though not reserved in his right; that very action would be sufficient to validate the base infeftment without possession. 4thly, Whatever might have been alleged, before the act of Parliament 1617, for registration of sasines, there is neither law nor favour since, for posterior acquirers, who might have known the prior infeftments: And therefore, in infeftments of warrandice lands, the possession of the principal lands is accounted possession of the warrandice lands; neither is there any ground to oblige a person who takes a feu of lands, to demand a more public infeftment of the warrandice lands, than of the principal.—It was answered, That albeit the narrative of the statute mentions fraudful alienations, yet the dispositive words are general, that wherever an infeftment hath been public, by resignation or confirmation, and hath attained possession year and day, the same shall exclude any prior base infeftment attaining no possession; and if the said act were only to be measured by fraud, then, if it could be alleged and astructed, that the first infeftment, though base, was for a cause onerous, and without fraud, it should be preferred; which yet never hath been done. And, for the practics, they meet not this case, nor the act of Parliament, because the posterior public infeftment hath attained no possession.—It was answered, That now consuetude had both interpreted and extended the foresaid act; for thereby posterior public infeftments, though they be not for cause onerous, or clad with possession year and day, are ordinarily preferred contrary to the tenor of the statute; and base infeftments, retenta possessione, where the obtainer of the infeftment is negligent, are accounted simulate præsumptione juris, et de jure, but where there is no delay, nor ground of simulation, the base infeftment is preferred, whether the posterior public infeftment attain possession for year and day, or not.

The Lords having heard this case at length, and debated the same accurately among themselves; in respect they found no preceding decision, whether base infeftments of warrandice, where there was possession of the principal lands, were valid, or not, against posterior public infeftments; they found this base infeftment of warrandice valid against the posterior public infeftment; the infeftment in warrandice being simul with the principal, and not ex intervallo, and being after the act of Parliament 1617; but did not decide the case to be of general rule for warrandice, ex intervallo before the said act.

Fol. Dic. v. 1. p. 91. Stair, v. 1. p. 335. *** Dirleton reports the same case:

In the case Brown contra Veatch and Scot, it was found, after contentious debate in præsentia, at the bar, and betwixt the Lords, That an infeftment of warrandice base, to be holden of the granter, should be preferable to a public infeftment of property granted thereafter, holden of the superior, and clad with possession divers years: And that the possession of the principal lands should be interpreted the possession of the warrandice lands. Some of the Lords were of another judgment upon these grounds; 1 mo, By the act of Parliament, Jas. V. Par. 7. cap. 105. (entitled, Provision and Pains of them committing fraud in alienation and otherwise) a public infeftment is preferable to a base not clad with possession, though anterior: And both the verba and ratio legis, do militate in favour of the heritor by a public infeftment; the intention and end of the law being to obviate fraud and prejudice by latent infeftments: And it being all one, as to the interest and prejudice of the party who acquireth lands, whether the private and latent infeftment be a right of property or warrandice, seeing an infeftment of warrandice, when the principal lands are evicted, becometh an infeftment of property.

2do, The act of Parliament foresaid, of King James V. is not taken away by the act of Parliament King James VI. 1617, anent registration of sasines; in respect, an infeftment of property being base, though registrate and anterior, will be null in prejudice of a party, who has acquired a right by a posterior public infeftment: And both the said acts of Parliament being remedia quæ tendunt ad eundem finem, though the hazard be not so great, as to the prejudice by latent and private infeftments, since the act of Parliament anent registration of sasines; the said act of Parliament 1617, doth not derogate from the act of Parliament King James V.

3tio, As to that pretence, that the possession of the principal lands is the possession of the warrandice fictione juris, it was answered, That there is no such fictio warranted by any law; and so it is fictio, but not juris.

Secundo, It is fictio contra jus, et cui jus resistit, in respect the heritor by the public infeftment of property being in possession, no other person can be said to be in possession, seeing there cannot be two domini in solidum, nor two possessors by distinct rights, having no subordination or dependence one upon another, as liferenter and fiar, superior and vassal, master and tenant; or such like.

4to, It is clear, that the possession of the principal lands cannot be thought the possession of the warrandice; seeing, if after forty years, theprincipal lands should be evicted, and a pursuit for warrandice and recourse should be intented upon the right of warrandice, though prescription cannot be obtruded, yet if there be any defect in the infeftment of warrandice, as v. g. the disposition is subscribed by one notary, or such like, the same may be alleged; whereas, if that infeftment were clad with forty years possession, the right would be prescribed, and could not be questioned upon any ground whatsoever, but falsehood.

In this process, it was questioned, Whether the heritor, who had the public infeftment, having been in possession above seven years, should have the benefit of a possessory judgement, until a declarator and a decreet in petitorio.

Some of the Lords thought, that in the case of warrandice, the heritor should not have the benefit of a possessory judgment against the pursuer, upon an infeftment of warrandice, quia non valebat agere; but the question was not decided.

Dirleton, No 15. p. 7. *** Gilmour also reports the same case:

The Earl of Traquair having feued to umquhile Mr James Lawson and Elizabeth Brown, his spouse, the lands of Ingliston and Maidenhead, and the lands of Fingland, in warrandice, by an infeftment holden of himself; they did possess the principal lands many years, till of late Sarah Cockburn, spouse to Mr Patrick Gillespie, upon a prior infeftment of annualrent, has gotten a poinding of the ground for an annualrent, exhausting the whole duties of the principal lands; whereupon Elizabeth arrests the rents of the warrandice lands in the hands of Richard Vetch, tenant, and pursues to make furthcoming. Compearance is made for John Scot, who is assigned to the duties by John Stewart, who stands publicly infeft in the warrandice lands, and alleges, That he ought to be preferred, in respect of his public right, and clad with possession; whereas the pursuer's right is only base, holden of the granter, and not clad with possession. It was answered, That the allegeance ought to be repelled; and the public infeftment cannot be obtruded against a base infeftment of warrandice, though not clad with possession of the warrandice lands, because there could not be a title for possession of the warrandice lands, until the principal lands were evicted; but in the mean time, the principal lands being possessed, makes in effect the infeftment of warrandice to be clad with possession thereof, just as an infeftment of warrandice lands doth not prescribe, but from the eviction of the principal; and a base infeftment being, of its own nature, a legal and valid investiture, wanting no solemnities, though not so sovereign as an infeftment holden of the superior, it ought not to be invalidate for want of possession, which, for the time, it was not possible to attain to; the pursuer, immediately after the distress, doing all diligence for possession; especially considering, that since the act of Parliament was made for the registration of sasines, acquirers of land may as well come to the knowledge of base infeftments as public, by the registers.—It was replied, That by our law and practiques, there is no difference betwixt infeftments of warrandice and others; but, indistincte, a base infeftment is postponed to a public (being specially year and day in possession); and if this were not sustained, then infeftments given to cautioners for their relief of debts, though base, should be preferred to public infeftments, though not clad with possession till a distress. Likeas, the procurer of a base infeftment might have helped himself, and caused the disponer infeft him holden of the superior, or otherwise, not to have purchased the principal lands; or might have raised a declarator of his right of warrandice, or intimated the same to the tenants, which would have made it equipollent to a possession before eviction.—Duplied. That the pursuer opponed his infeftment and reply, and added, that the principal and warrandice lands were within the body of the same disposition, charter, and sasine, holden of the same granter and superior; neither can any man be blamed to acquire a feu or infeftment of lands, to be holden of the granter, being superior, though he be but a sub-vassal, and his feu not so noble as the principal vassals is, yet he is a lawful vassal by a lawful and valid right: And if no fault can be imputed to him, by taking the principal laws so holden, no more the warrandice which succeeds in the place of the principal, both being in one infeftment, and in one barony, at least by annexation.

The Lords having heard the matter in their haill presence, sustained the infeftment of warrandice. Nota, Though they thought there was a difference betwixt infeftments of warrandice of this nature, and infeftments of warrandice for relief of cautionry, yet if that had been the question, I know not what decision they would have given.

Gilmour, No 173. p. 124.