Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR PETER WEDDERBURN, LORD GOSFORD.

Captain Alison and James M'lurg
v.
Bailie Carmichael and Andrew Aickman

Date: 25 July 1676

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In a poinding of the ground, pursued at the instance of James Alison and James M'Lurg, as being infeft in an annualrent out of the lands of Thurstoun, compearance was made for Bailie Carmichael, who alleged, That he ought to be preferred, because he stood infeft, by virtue of a disposition, in the said lands, made by the common debtor in November 1672, whereupon he was infeft, and immediately entered in possession, by labouring and sowing the lands, and granting tacks to tenants, before the annualrenter's right was either made public by confirmation or clad with possession.

It was answered and alleged for Captain Alison and James M'Lurg, That they ought to be preferred notwithstanding; because they were infeft in the annualrent in June, which was long prior to Carmichael's infeftment, and was made public, by confirmation in the Exchequer, that same day that Bailie Carmichael's disposition was confirmed: and, as to any possession by labouring of the lands and granting tacks, it can be no ground of preference; because, not only the disposition was granted by the common debtor after he was denounced rebel and under caption; but his right, and entering Bailie Carmichael to the possession, was voluntary, and in favours of his own good-brother; which makes it most suspected; and is never sustained against a prior infeftment of annualrent; whereupon no diligence could be done, for apprehending possession, until after the first term of payment, which was posterior to Carmichael's voluntary infeftment: and the preference of posterior rights being only founded upon that point of law, that those who had prior rights did no diligence, whereby the condition of the common debtor might be made known, that reason ceaseth in this case, where the annualrenters were incapacitated to do diligence.

It was replied for Carmichael, That the bond for infefting the annualrenters were two years before they took any infeftment, so that they were in supina negligentia: and, albeit their infeftment was prior to his, yet they, being both base, and his clad with possession before any of them was made public by confirmation, in law he is preferable; his right being first made public by possession. It was replied to the second, That his disposition was for most true and onerous causes, as it bears; and, there being no reduction ex capite fraudis, he is not obliged to answer these grounds.

The Lords did find, That nothing was to be decided but as to the preference of their rights in question; and did prefer the annualrenters to Carmichael upon these grounds, That they had the first infeftment, and that any possession Carmichael had was by the voluntary deed of the common debtor, who ceased to labour as formerly, and had suffered the tenants to take new tacks from Carmichael, being freed from their old tacks; as likewise, that, before Carmichael's infeftment or possession, the annualrenters had given in their signatures to be confirmed in Exchequer, and had raised and executed summonses against the tenants, and could not proceed farther until after the term of payment, and so were not in supina negligentia. But I was of that opinion, that they ought all to come in pari passu, without preference; being moved upon this reason, That both their rights being private, and made public at one and the same time by confirmation, the law did make none of them preferable to others who had obtained no possession by legal diligence, which could only make them public; and so their confirmations being of one date, and the only deed which did make them first public, they ought to come in pari passu.

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