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Scottish Court of Session Decisions >>
Clarkson v Milne. [1669] Mor 1296 (14 January 1669)
URL: http://www.bailii.org/scot/cases/ScotCS/1669/Mor0301296-027.html Cite as:
[1669] Mor 1296
Payment of a term's annualrent of a bond, whereupon sasine did not follow till after the payment, was found to make it public, quoad a donatar of liferent escheat, whose right was posterior. See No 24. P. 1294.
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Robert Milne, as donatar to the liferent escheat of Hamilton of Bathgate, whereupon he had obtained a decreet of special declarator: There is a reduction raised at the instance of John Clarkson and his children, upon this reason; that they were infeft in an annualrent out of the said lands, long before the rebellion or gift; and their right, albeit base, was clad with possession; for instructing whereof, they produced a discharge granted to Bathgate, of a term's annualrent preceding the sasine taken upon the heritable bond, and before the liferent escheat fell.—To which it being answered, That the discharge being for a term preceding the sasine, could only be ascribed to the personal bond, and did not make the infeftment public. 2do, The discharge was most suspect, and could not instruct payment, being written by Clarkson himself, and his son being one of the two witnesses, who was fiar of the annualrent.——The Lords, before answer, ordained Clarkson to prove by some other witness, that the money was truly paid by Bathgate, and the discharge delivered to him, et quomodo Clarkson had recovered the discharge out of his hands.
February 6. 1669.—The reduction mentioned on the 14th January being again called, and a condescendence given in by Clarkson, bearing that he offered to prove by witnesses the true delivery of the annualrent by Bathgate, and the delivery of Clarkson's discharge at the very same time.——The Lords did sustain the same as relevant to make Clarkson's base infeftment clad with possession, albeit it was for a term before the sasine, seeing the sasine was before the donatar's gift; for a sasine of an annualrent, is a good right to pursue a poinding of the ground for all proceeding annualrents, after the heritable bond, whereupon the sasine followed, and conseqently payment made quocunque tempore makes the same public, and the real right clad with possession, the sasine being prior to the donatar's right.
