Scottish Court of Session Decisions

Subject_1 DEBTOR AND CREDITOR.
Subject_2 SECT. I.

Relief among Co-debtors, and whether the Creditor, upon payment, is bound to assign in order to operate relief.

Lord Balmerino
v.
Hamilton of Little Preston

Date: 22 June 1671
Case No. No 6.

Found in conformity with No 1. p. 3345.

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—— Wishart in Leith did grant infeftment of an annualrent of L. 40 yearly, out of two tenements in Leith, in any part of them; which annualrent by progress belonged to Mr John Adamson, and after the constitution of the annualrent, the two tenements were transmitted to different proprietors, and now the one belongs to the Lord Balmerino, and the other to Hamilton of Little Preston; the annualrenter did only insist against Balmerino's tenement, and upon an old decreet of poinding of the ground of that tenement, hath continued in possession, and distressed Balmerino; who having suspended on this ground, that the annualrent being out of two tenements, whereof he had but the one, he could be only liable but for the one half.

The Lords found that the annualrenter might distress any of the tenements for the whole, but reserved to Balmerino his relief as accords.

Whereupon Balmerino now pursues Little Preston to repay him the half of the annualrent, for which he was distressed, because he having paid, did liberate Little Preston of the annualrent which affected both tenements, they being now in different heritors' hands, behoved to infer a proportional relief, as is ordinary in all annualrents, constitute upon any barony or tenement which thereafter comes to be divided. The defender alleged absolvitor, because he had bruiked his tenement much more than 40 years before this pursuit, free of any such annualrent; and therefore had prescribed the freedom thereof. The pursuer answered, that prescription was hindered by the annualrenter's possession, in getting his annualrent, which though it had been but by a personal obligement, it would have preserved his right entire to all effects in the same manner, as payment by a principal debtor hinders the cautioner's bond to prescribe, though he were free thereof for 40 years. It was answered, that albeit there might be ground for the reply, where the annualrent is constitute out of one barony or tenement, whereon infeftment may reach the whole, yet it cannot hold in this case, where the annualrent is constitute upon two distinct tenements; and where there behoved sasine to be taken upon both of them, and if omitted upon one, that would be free.

The Lords found that payment of the annualrent out of any of the tenements, saved prescription as to both. See Prescription.

Fol. Dic. v. 1. p. 221. Stair, v. 1. p. 738.