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Scottish Court of Session Decisions >>
E. Galloway v Gordon of Kingstair. [1636] Mor 8384 (29 March 1636)
URL: http://www.bailii.org/scot/cases/ScotCS/1636/Mor2008384-079.html Cite as:
[1636] Mor 8384
Litigious by denunciation upon apprising, and citation upon adjudication.
Subject_3 SECT. III.
Mora.
E Galloway v. Gordon of Kingstair
Date: 29 March 1636 Case No. No 79.
A posterior voluntary base infeftment granted for onerous causes, and clothed with possession, found preferable in a possessory judgment to a prior comprising, in respect the compriser had been in mora, by lying out four years without doing any diligence.
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In a double poinding, both contending who ought to be answered of the duties of the mill of Sorbie, which were comprised in anno 1632, by the Earl of Galloway, and who neither had done diligence, nor was infeft upon the comprising; and the other party, after perfecting of the Earl's comprising, being infeft in the said mill by the common debtor, by a base infeftment, for causes most onerous, of debt paid by Gordon for Sorbie; and by virtue of his said infeftment, he being in peaceable possession of the mill, and whole duties thereof, two years together uninterrupted, and continually to this year 1636, now controverted, and so they both claiming preference, by reason of their rights foresaid; wherein the Earl alleged, that the voluntary deed of the base infeftment granted after his comprising, could not be respected, nor no act voluntarily done by the common debtor, who is now, and was then non solvendo, for his denunciation was enough to take away all deeds thereafter done by the debtor, in prejudice of his public act of denunciation; and he contended that his comprising, without either diligence or infeftment, was sufficient to give him right to the mails and duties. The Lords repelled the allegeance, in respect the compriser was neither infeft, nor had done any diligence by the space of almost these four years since his comprising, to obtain himself infeft, and that he was not yet infeft, therefore they preferred him who was infeft in this judgment possessor.
Act. Stuart & Nicolson.Alt. Gilmore.Clerk, Gibson.
Fol. Dic. v. 1. p. 558. Durie, p. 808.
