Scottish Court of Session Decisions

Subject_1 ANNUALRENT, INFEFTMENT OF.
Subject_2 In what manner an Annualrent-Right may be Extinguished.

Rankin
v.
Arnot

Date: 8 July 1680
Case No. No 11.

In an infeftment of annualrent, constituted after the new form, as an accessory security, to the principal personal obligation, payment of the principal sum, obtained by poinding of the ground, was found effectual, against a singular successor, in the annualrent, without renunciation.

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Rankin of Pottie having obtained right to an heritable bond, and infeftment thereon, and having pursued a poinding of the ground against Arnot of Capledrea, the defender alleged absolvitor, because he had made payment to the pursuer's author, before he was denuded, not only of the bygone annualrents, but of all, or a part of the principal sum, or at least the same was satisfied by his author's having poinded, not only for the annualrents, but for the principal sum; likeas he had compensation against his author, prior to his right, which he now produces.—The pursuer answered, non relevat, That the defender had made payment to the pursuer's author, unless he had obtained from him a renunciation of the annualrent, and the same had been duly registrate, conform to the act of Parliament 1617, without which, no payment made, or satisfaction obtained, by legal execution, much less compensation, is relevant against a singular successor, acquiring a real right of an annualrent by an infeftment; and finding nothing in the registers to evacuate the annualrent, he was in tuto to purchase the same.—The defender replied, That the act of Parliament anent registration is only made for securing purchasers of land, and hath no mention of annualrents, and cannot be extended thereto, being a statute stricti juris, as it could not be extended to renunciations ad remanentiam, until the late act of Parliament, extending the same; and albeit it could be extended to annualrents principally disponed, but under reversion, and with a clause of requisition, yet it cannot be extended to this case, where the bond is principally personal for payment of a sum, and there is only an infeftment of an annualrent in security; so that the personal obligation may certainly be extinguished by payment, either voluntarly, or by legal execution, or by compensation; and therefore the infeftment and security being but accessory, falls in consequence, and requires no renunciation: And there is no parallel with such annualrents and purchase of lands; seeing the purchaser of annualrents cannot but know that it is a security for money, and may inform himself by the debtor, whether it be resting, or otherwise left upon his author's warrandice; and seldom are such annualrents purchased, but either of necessity, or for some advantage.—It was duplied for the pursuer, That every right must be dissolved as it was constituted; therefore, as the annualrent required a sasine registrate to its constitution, so it must have a renunciation registrate to its destitution; and therefore it hath always been the common opinion, that infeftments of annualrent must be so evacuate; and where lands is mentioned, omne jus reale is understood, otherwise the statute would not reach to secure proper wadsets.—The defender triplied, That the brocard alleged hath many exceptions; as 1mo, Infeftments upon apprisings are extinct without renunciations, not only by intromission by the statute 1621 anent apprisings, but also by payment by the debtor and his discharge, which is effectual against appriser's singular successors, and likewise infeftments for relief; yea the infeftments which now are very ordinary for security of sums, whereby the purchaser is to enjoy the profits to be imputed in his annualrents, and then in his principal sum. In all these cases, payment by intromission, or otherwise, are relevant against singular successors, without any renunciation, and therefore ought to be so in heritable bonds. 2do, Many heritable bonds admit of summary execution, without requisition; and before the late act of Parliament, poinding might proceed thereupon, without abiding the days in the charge; and if this were not sufficient against singular successors, no man could be secure from double payment. In like manner, such bonds become moveable by a charge or requisition, which looses the infeftment, and makes the sums moveable, arrestable, escheatable, and testable; and generally, creditors think themselves secured when they pay heritable bonds, and oft times do not know whether infeftment be taken thereupon or not.

The Lords found, That satisfaction of annualrents by infeftments, in security of personal obligements, obtained by poinding, or other legal diligence, were thereby extinct, without necessity of renunciations, and that against singular successors; and likewise they admitted compensation, upon debts due by the cedent before infeftment was taken, when the bond was merely personal; and that all exceptions against the bygone annualrents, by payment or compensation, was relevant against singular fnccessors: But found, That the poinding used in this case was unwarrantable; so had not occasion to determine whether renunciations registrate, in case of voluntary payment of sums, whereupon infeftments of annualrent followed, wherein the debtor might easily secure himself, by refusing payment without renunciation, was in that case requisite. (See Compensation. —Retention.)

Fol. Dic. v. 1. p. 46. Stair, v. 2. p. 782.