Scottish Court of Session Decisions

Subject_1 PERSONAL and REAL.
Subject_2 SECT. I.

Debita fundi.

College of St Andrews
v.
Creditors of Newark

Date: 3 February 1762
Case No. No 13.

Rent-charge.

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In the year 1477, John Kinloch of Cruivie, granted to the friars predicators of St Monance a perpetual annuity of L. 20, to be levied out of his lands of Invery, part of the estate of Newark. A sale of this estate being brought before the Court of Session, upon the bankruptcy of the proprietor, appearance was made for the College of St Andrews, who had right by progress to this perpetual annuity; and craved to have it declared as a condition in the articles of roup, that the estate should be burdened with payment of the said annuity. The Court had no hesitation to grant the prayer of this petition, even against a purchaser of the said lands of Invery, though the annuity was a rent-charge only, and never clothed with infeftment. The reason was, that rent-charges were customary in Scotland before infeftments of annualrent were introduced; and they were real rights even without infeftment, so as to be effectual against all singular successors. What is curious in this case, is to find rent-charges subsisting in Scotland even to this day. And it is remarkable, that here is a real right upon land against which the records afford no security to a purchaser.

Sel. Dec. No 186. p. 251.