Scottish Court of Session Decisions

Subject_1 SASINE.
Subject_2 SECT. I.

Symbols and Formalities of Infeftment of Annual Rent.

Mr Walter Stirling and other Creditors Adjudgers of the Estate of Ballagan,
v.
the Creditors Annual-Renters upon the said Estate

Date: 26 February 1724
Case No. No. 3.

The same subject agitated, but not decided.

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In the ranking of the creditors of Ballagan, a competition arose betwixt the adjudgers and annual-renters: the adjudgers had charged the superior, and the annual-renters (the grounds of whose debts were prior to the adjudications) had all of them taken two infeftments, one prior and another posterior to the adjudications.

It was objected to the infeftments prior to the adjudications, that they were null, in so far as they bore to be given by delivery of earth and stone, but did not mention a penny money, which is the usual symbol of an annual-rent.

It was answered, that the infeftment on the lands, by delivery of earth and stone, was sufficient to make the annual-rent real, and that there was no law requiring the symbol of a penny money as necessary. The Lord Newhall ordinary repelled the objection against the infeftments, as not having a proper symbol.

This judgment was reclaimed against, but was not determined by the Lords, because the determination of the following objection put an end to the competition, and was sufficient, ad victoriam causae, to the annual-renters.

2do, It was objected to the infeftments which were taken after the adjudications and charge, that they could afford no ground of preference, because, by the act 1661, an adjudication with a charge is made equal to an adjudication with an infeftment thereon; for either of them makes an adjudication effectual: and no doubt an adjudication with infeftment would be preferable to any posterior infeftment, and therefore so should an adjudication, with a charge, according to my Lord Stair's opinion, B. 2. T. 3. § 30. of his Institutions, where he says, “that after a charge no infeftment upon a voluntary disposition, can be granted by the superior, preferring any other vassal to the adjudger.” And were it otherwise, a creditor could not secure himself against posterior voluntary rights; for what could he do more than charge the superior: and to sustain a charge as sufficient was a great advantage, for thereby both the debitor and adjudger were saved the expence of an infeftment.

To this it was answered, That seeing the grounds of the debts due to the annual-renters were prior to the adjudications, it was impossible that the adjudgers could reduce them; and that seeing an adjudication with a charge is so far from being a real right, that it needs not a special service, it could not compete with an infeftment taken at any time which gives a real right. As to the act 1661, it was answered, that it made a charge equal to an infeftment as to one effect only, namely, to bring in the adjudgers within year and day pari passu, but could not be applied in a competition betwixt an adjudication upon which no infeftment had passed, and an heritable security which had been made real by infeftment: for if the heritable security was before the adjudication, the infeftment made the debt preferable, as was found Aikenhead against Nisbet, No. 66. p. 2823.

In the next place it was pleaded, that there was not, in the present case, so much as a formal charge against the superior, there being only a charge against an apparent heir who was not himself infeft, and therefore could not possibly grant an infeftment; the apparent heir should first have been charged to enter, and if he refused, the next superior should have been required to enter the adjudger.

“The Lords found, that the heritable bonds and writs in favour of the annual-renters and infefters being prior to the adjudications, the infeftments on the rights of annual-rents, though posterior to the adjudications and charges thereon, were preferable to the said adjudications

Edgar, p. 41. Arch. Stewart for the Adjudgers. Alt. Ja. Fergusson.

*** Lord Karnes' report of this case is No. 69. p. 2831. voce Competition.