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Scottish Court of Session Decisions >>
Monteith v L. West-nisbet [1642] Mor 1295 (11 February 1642)
URL: http://www.bailii.org/scot/cases/ScotCS/1642/Mor0301295-025.html Cite as:
[1642] Mor 1295
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William Monteith pursuing poinding of the ground against the Laird of West-Nisbet, for an annualrent wherein he was infeft, by a base infeftment, and other creditors of West-Nisbet, who were infeft by public infeftments upon comprisings, but posterior, some years after this pursuer; alleging, that all the creditors should come in pari passu in such a case, as concerned so many persons heavily prejudged by West-Nisbet, who was become bankrupt; whereas, if any which were prior should be preferred therefore, that would overthrow many others who were wracked thereby;—The Lords preferred Monteith in respect of the priority of his real right, notwithstanding that it was alleged, that the same was but base, holden of the granter, and that the King's confirmation thereof made it no more public, but would save the same only from forefaulture, or recognition, and such accidents; and that their infeftments were public, holden of the King; and also, albeit it was answered to the reply of possession, That the same ought not to be respected, because the same was only clad with payment, made by the debtor of the annualrent for his money, which could not corroborate that right, the possession not being out of the land, nor made by the tenants; notwithstanding whereof the reply was sustained, seeing he offered to prove, that the payment was made conform to his infeftment, at the date of the which right it was lawful to the pursuer to contract with his debtor, he neither being then bankrupt, nor inhibit, nor at the horn; and whatever was his case thereafter, that ought not to prejudge him, who had dealt with a responsal party, when he contracted with him.
