Scottish Court of Session Decisions

Subject_1 BASE INFEFTMENT.
Subject_2 SECT. V.

Publication by Payment of Annualrent.

Keith of Badinscoth
v.
Falconer

Date: 15 February 1695
Case No. No 29.

An heritor paid a year's annualrent to a base infefter, and took assignation to it. This found equivalent to a discharge, he being heing heritor and possessor of the fundus, which was properly debtor in the in the annualrent. A very slight possession is sufficient among strangers, the law being chiefly directed against confident persons.

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Whitelaw reported Helen Keith, and Gordon of Badinscoth, her husband, contra Sir Alexander Falconer of Glenfarquhar and Scot of Logie, about the clothing of a base infeftment with possession.——The Lords found Sir John Falconer's paying a year's annualrent of it, though he took no discharge but an assignation, and though he was not debtor in the annualrent, but had only purchased the lands out of which it was upliftable, was sufficient to make it public, even against Sir John's singular successors.

December 20.—The Lords re-advised the debate between Helen Keith, Lady Baldinscoth, and Sir Alexander Falconer and Scot of Logie.——The Lords having found the base infeftment sufficiently clad with possession by Sir John Falconer's paying two years annualrent, and taking assignation thereto, which they found equivalent to a discharge, he being heritor and possessor of the fundus, which was properly debtor in the paid annualrent; many things were subtiley urged against this interlocutor, that actus agentium non operantur ultra eorum intentionem; and it could never be Sir John's meaning to prefer this annualrent to the apprisings and other rights then standing in his person, and which, if they had belonged to a third party, in a competition, would clearly have excluded this annualrent, and much more when they came to divide; and the apprisings are conveyed to Glenfarquhar and Logie, his singular successors. But the Lords adhered to their former interlocutor, and found the assignation was all one with a discharge, and the annualrents coming in his person, were incompatible with his rights of property, cum res sua nemini serviat; and though he might defend on more rights as titles of possession, yet this servitude was no such title. See Stair, v. 1. p. 402. Earl of Southesk against the Marquis of Huntly, voce Personal and Real. And they thought any thing was sufficient to clothe a base right with possession, seeing the 105th act of Parliament 1540, introductory of that distinction, was levelled only against fraudful alienations made among near friends, and where there was ground to suspect simulation; and the distinction became unnecessary after the act 16th of Parliament 1617, for registration of sasines, and is now wholly abrogated by the act 1693, c. 13: And found Sir John's taking the assignation, made his other rights then in his person accresce, inferring a non repugnantia; so that neither he, nor any coming in his right, can object against the same; and so preferred the Lady; though some thought it only a personal objection secluding Sir John himself from quarrelling it, in respect of his tacit acknowledgment, but not his singular successors.

Fol. Dic v. 1. p. 89. Fountainhall. v. 1. p. 670. 690.