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Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.
- v. Corley, &c
Date: 21 February 1671
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One having an infeftment of annualrent out of two tenements of land lying in the Canongate; and pursuing a poinding of the ground against Couley, and some other possessors.
It was alleged, 1mo, That he behoved to restrict his annualrent to 6 for the 100. This they were content to do. 2do, The resignation whereon they were infeft was null, because made in the Bailie of the Canongate's hands, whereas it should have been in the Earl of Roxburgh's, who was then superior. The Advocate repelled the allegeance, in respect it has ever been the custom that these resignations have been made in the Bailie's hands; in respect of which he sustained the resignation. 3tio, Alleged, The decreet of poinding must only be for the one half of the annualrent, because the pursuer, since his infeftment of annualrent, has acquired the property of one of the two tenements which stood burdened and affected, so that consolidatione et confusione tollitur obligatio, and he is become both debtor and creditor as to the half, and he cannot have a servitude in that which is now become his own property, cum res sua nemini serviat.
To this it was answered, That the other tenement stood bound to him for his whole annualrent, since his right was an infeftment of annualrent out of both of these tenements, or any part thereof, so that it was altogether in his option to take himself to the one or the other for his annualrent as he pleased, neither could he be restricted; and it is like to more correi debendi bound to a creditor conjunctly and severally, who may distress any of them he pleases.
Replied, Albeit he may distress any of them for his annualrent, yet if one of them pay the whole, it is out of all question but the heritor thereof will have relief against the heritor of the other tenement also bound pro rata; and so this pursuer will so be both debtor and creditor.
Triplied, That is true where they belong not both to one man; but here there was one common author of both.
My Lord Advocate inclined to find annualrent extinct pro dimidio; yet was sparing, and took it to himself in avisandum. Vide infra, No. 178. [ June 22, 1671, Balmerinoch. ]
