Irritancies in Feus, Tacks, and Rentals, how purgeable.
The Abbot of Kilwinning v. N
Date: 22 January 1566 Case No. No 74.
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The Abbot of Kilwinning pursued N. to remove from certain lands, which he was rentalled in by the pursuer, with provision, that, if he made over the right of his rental to any other, without the Abbot's consent, he should lose his tack and rental ipso facto, without further process. Alleged, That, notwithstanding of that provision, the pursuer behoved to obtain a declarator of failzie, before he were decerned to remove. Replied, The nullity of the tack might be received by way of exception, even as the nullity of the law; be cause, it is the same to be null of the law, and to be null by the consent of both parties. The Lords found the exception relevant.
Fol. Dic. v. 1. p. 489. Spottiswood, (Removing.) p. 282.*** Maitland reports this case.
In an action of removing, moved by the Abbot of Kilwinning against ——, desiring him to be decerned to flit from the lands of ———, it was excepted, That the said defender was rentalled in liferent, and, therefore, ought not to remove. It was replied, That it was provided in the rental, that, if he gave his title of this rental to any other, without consent of the Abbot, he should tyne his tack and rental ipso facto, without farther process. It was answered That, notwithstanding that provision, he behoved first, by way of action, to be declared to have tint his tack, for the cause foresaid. It was replied, That the said nullity of the tack might be received by way of exception, likeas the nullity of the law, and be null by consent of both the parties. The Lords found, by interlocutor, that he could not be decerned to remove, before that he was declared, by way of action, to have tint his tack.
