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Scottish Court of Session Decisions >>
A. v B. [1624] Mor 1276 (13 February 1624)
URL: http://www.bailii.org/scot/cases/ScotCS/1624/Mor0301276-004.html Cite as:
[1624] Mor 1276
Base Infeftments are preferred to one another, and to Public Ones, according to date, if steps have been taken, sine mora, to attain Possession.
A v. B
Date: 13 February 1624 Case No. No 4.
A base infeftment preferred to a public one, as being in date prior; the base infefter having, sine mora, proceeded in diligence to render his right public.
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In an action for poinding of the ground of a tenement of land, which was holden of the Baron of Burghton, conform to an infeftment of an annualrent granted to the pursuer by the heritor of the tenement, to be holden of the granter; after the which infeftment of annualrent, the heritor of the land, granter thereof, resigned the lands in the superior's hands for infeftment heritably, to be given thereof to the defender, and who upon the superior's precept was infeft; and by virtue of this public infeftment the defender compeared, and would have excluded the pursuer's action, founded upon the base infeftment; to the which he alleged he should be preferred, in respect of the act of Parliament, seeing that conform to his public infeftment, he alleged he had acquired a year's possession of the land. This allegeance was repelled, and the base infeftment of the annualrent preferred to the public infeftment of the property, because it was no more than a year since the date of any of the two infeftments; for the pursuer's infeftment of the annualrent was in January 1623, and the defender's infeftment of the property was in April thereafter, the same year; and that immediately after that first term, subsequent to both their infeftments, which was Whitsunday, and before the which first term, the annualrenter, who is pursuer, could have no action to seek the annualrent before the term was past; she immediately after the said term intented this action, whereby she had done all lawful diligence to make her right public; and before the which diligence so done by her, the defender could not possibly apprehend any possession, which might so authorise his right, or lawfully acquire possession, there being no terms interveening before the pursuer's diligence and summons, as said is, which could derogate from her anterior right; and what possession he had, if any was, since the summons, the same ought not to be respected.
Act. Paip.Alt. ——.Clerk, Hay.
Fol. Dic. v. 1. p. 87. Durie, p. 109.
