Scottish Court of Session Decisions

Subject_1 BASE INFEFTMENT.
Subject_2 SECT. XI.

Whether Possession of a Part validates as to the Whole.

Miln
v.
Hay

Date: 6 November 1678
Case No. No 62.

A base infeftment of annualrent, out of two separate infeftments, is validated as to both, by uplifting mails and duties from tenants of either.

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

Umquhile Mr John Stuart of Kettleston, granted an infeftment of an annualrent out of his lands of Kettleston, to Alexander Miln; and another annualrent out of kettleston and Alderston, to Sir George M'Kenzie; whereunto Mr Thomas Hay hath right. Both annualrents were base; and in a competition betwixt them for poinding of the ground, the Lords found the first possession did give the preference. Mr Thomas Hay produces a discharge to the tenants of Alderston; and Provost Miln a poinding of the ground of the lands of Kettleston, but posterior to the discharge.—It was alleged for Miln, That he ought to be preferred as to the lands of Kettleston, because he had the first possession of it by his decreet.—It was answered for Mr Thomas hay, That his annualrent being both out of. Kettleston and Alderston's possession, by lifting his annualrent, either from the heritor, or from the tenants of any part of the lands, is sufficient for the whole, as taking off the presumption of simulation retenta possessione.—- It was replied, That albeit payment by the debtor might have referred to both tenements, or if the tenements had been united locally or by union; but here Alderston is in East Lothain, and Kettleston is in West Lothain.———The Lords found the base infeftment of annualrent, out of two tenements discontiguous and not united, validated as to both tenements, by uplifting of the annualrent from the tenants of either.—Provost Miln did then offer to satisfy Mr Thomas Hay's right, providing he would dispone to him his infeftment of annualrent, out of both the tenements; or otherwise would declare that Mr Thomas would affect Alderston prima loco, wherein he alone is infeft, and kettleston recundo loco, in which both are infeft; but if he should affect Kettleston primo loco, with his whole annual-rent, there would nothing remain for Miln; and it was ordinary for the Lords in competitions, to ordain the party preferred to take satisfaction, and to dispone his whole right.—It was answered, That every man may use his right at his pleasure, and cannot be obliged to take satisfaction, and assign; but where there is a reversion or redemption to be used, it can only import a renunciation, but not an assignation: And though the Lords have sometimes ordained parties preferred to take payment, and dispone; yet that is only ex nobili officio, upon the general ground of charity quod mihi prodest et tibi non obest; but they never did it, where the party could have any detriment by so doing; as in this case Mr Thomas Hay being cautioner for Kettleston, and having adjudged Kettleston and Alderston for his relief, therefore may lawfully affect Kettleston for his annualrent, and both by his adjudication.

The Lords found, That the party preferred was not obliged to dispone upon satisfaction, in prejudice of his other right acquired before the competition. See Debtor and Creditor.

Fol. Dic. v. 1. p. 91. Stair, v. 2. p. 644.