Scottish Court of Session Decisions

Subject_1 BASE INFEFTMENT.
Subject_2 SECT. VIII.

Whether the Reverser's possession validates Redeemable Rights, held Base.

Lawrie
v.
Irving, &c

Date: 11 January 1678
Case No. No 51.

The heritor's possession by a back-tack, was found not to validate a base infeftment of wadset, unless payment of the backtack duty had been obtained.

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In a competition between Irving and Lawrie, for the mails and duties of the lands of Logan, Irving craved preference, because he had apprised the land from the common author, and had charged the superior four years before Lawrie's right; which was a voluntary wadset, with a back-tack never clad with possession.—It was answered for Lawrie, That he had the first infeftment; and that albeit voluntary dispositions cannot prejudge legal diligence by apprising, as being a fraudulent gratification of the debtor; so that after denunciation, a voluntary disposition hath been excluded by an apprising upon that denunciation, though after the disposition and infeftment, much more upon an apprising with a charge; but, in either case, it is but an incomplete diligence; and if it be not followed till it attain effect, posterior accomplished rights will be preferred, otherwise a denunciation to apprise would be equivalent to an inhibition; so that the denunciation is only valid to prefer, if an apprising follow upon the day denounced to; and therefore some time must be required, that an apprising should proceed further than a charge, by compelling the superior to enter, or his superior to supply, at least within a year, otherwise a comprising and charge should insecure all purchasers, and make useless registers of sasines; for though of late allowances of apprisings be ordained to be registered, the certification is only that a posterior apprising first registered shall be preferred; which says nothing as to voluntary rights, nor to any right before that act, and would necessitate all purchasers to look after all apprisings, whether they had a charge or not; so that this appriser having been supinely negligent for four years, the wadset is preferable, and the heritors possession by the back-tack validates the wadset.

The Lords found the heritors possession by the back-tack, did not validate the wadset, unless payment of the back-tack duty were obtained; but as to an apprising with a charge, whether it required any more diligence to prefer, the Lords resolved to hear it in their preference.

Fol. Dic. v. 1. p. 90. Stair, v. 2. p. 591.