Scottish Court of Session Decisions

Subject_1 ANNUALRENT, INFEFTMENT OF.
Subject_2 Whether an Annualrent-Right be a foundation for Mails and Duties?

Gray
v.
Graham

Date: 24 March 1626
Case No. No 1.

Annualrents of old had no effect but by poinding of the ground, and produced no personal action for mails and duties.

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In the action betwixt Gray and the Tenants of Fairniflat, whereof mention is made 2d March 1626, No 108. p. 562. one Andrew Graham compeared, and alleged, That the farms of the mains of Fairniflat ought not to be made forthcoming for the crop 1625, which was controverted to Gray the arrester; because William Graham of Fairniflat, the arrester's debtor, and for whose debts the saids farms were arrested, was denuded of the right to the lands, in favours of the said Andrew, by contract in May 1624; annailzieing the saids, lands to him, and charter and sasine following thereon, in July 1624, and real possession had, conform thereto, by holding of courts and uplifting of the farms the said year 1624, from these same tenants, who became his tenants. Likeas, they acted themselves to pay their farms to him of the crop 1625; which is now controverted; and so the tenants cannot be conveened therefor by the pursuer, as if the farms pertained to his creditor, who was denuded of his right to the lands before the arrestment, as said is.—It was replied, That the tenants behoved to be repute tenants to his debtor, notwithstanding of the excipient's right; because the sasine alleged by the excipient was not registrate within 60 days after the date thereof, conform to the act of Parliament, and so was null, and cannot therefore give him real right to the land; but the heritor remained master to the tenants, and they are debtors to him of their farms, and consequently to this arrester.—The Lords, notwithstanding of this answer, found the exception relevant, notwithstanding of the not registration of the sasine within 60 days, because quoad Graham of Fairniflat, the right was sufficient, and he could never allege that nullity; and this excipient also could not obtrude the same, who had no lawful right to the land, but only a personal right from his debtor, of a sum of money owing to him by obligation: And the act of Parliament provides, that this nullity may only be proponed by a third party, who hath acquired a perfect right of the land, which is not alleged in this case.

In this same process, another compearing for his interest, who had acquired an heritable right of an annualrent out of other lands, whereof the farms were also arrested, and craved to be made forthcoming the same crop 1625. Which infeftment of annualrent was granted also before the arrestment; by virtue where of he alleged, That he ought to be preferred to the arrester, for so many of the farms libelled as would satisfy his annualrent; and the arrester answering, That the infeftment of annualrent could not meet this pursuit, which was made for the farms of the lands, which the annualrenter could never crave by virtue of his right, especially the same being for an annualrent of silver, and the farms being victual: Likeas, his naked infeftment will never give him action against the tenants, as having right by virtue thereof to these farms, but will only produce action for poinding of the ground; which action remains entire to him, and is not prejudged by this process, albeit decreet were given to the pursuer; neither hath ever the excipient done diligence, nor intented any summons or action upon his infeftment, so that the same, without any other diligence, can never exclude him who hath arrested, and pursued thereupon this action, to recover the farms from the tenants, so that the parties rights are not circa idem.—The Lords, notwithstanding of the infeftment of the annualrent, preferred the arrester to the right of these farms, seeing the annualrenter might, notwithstanding of this sentence, poind the ground, and the goods being thereon: And it being alleged for the excipient, That, by this sentence in favours of the arrester, the tenants would be greatly prejudged, who hereby will be obliged in the farms to the arrester; and also will have their goods poinded by the annualrenter; and so will be twice distressed for the farms and duties of one crop, whereof they will not be liberate by payment made to the arrester: And also it being alleged, That albeit he had a real right to poind the ground for his annual, yet he was not thereby prejudged of his right to the farms pro tanto; and that it was in his option to elect any of these two actions and rights, as he pleased to claim the same, seeing he could not be urged to take him to the one, and forsake the other.—All this was repelled, and the arrester preferred ut supra; for the Lords found, That in respect of the 36th act, 5th Parliament, James III. that the tenants were in tuto to pay to the arrester, and that their goods could not be poinded again by the annualrenter for these farms once paid, and so could not be distressed for that annualrent; but that the annualrenter might poind his author's goods, or comprise the lands therefor, as the said act proports. But, by this decision, the right of the annualrenter is greatly prejudged, and he forced to seek the lands, which might be affected with other great burdens. (See Registration.)

Fol. Dic. v. 1. p. 45. Durie, p. 197.