Subject_1 IMPLIED DISCHARGE and RENUNCIATION. Subject_2 SECT. V.
Accepting a Tack, Whether it implies Renunciation of the Property; Whether it implies Renunciation of a former Tack.
Cunningham v. Cook
1583.
November—. Case No. No 26.
Accepting a tack found to take away an infeftment formerly granted by the same author.
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In an action of removing pursued by James Cunningham pensioner of Lesmahago, against a woman called Cook, excepted by the defender, that she was heritably infeft in the same lands by the pursuer's predecessor, and that long before the warning. Replied, that since the date of the said infeftment. she had taken tack and assedation of the same man, and so acknowledging herself once to be tackswoman, she behoved to remove after the ish of the said tack. Duplied, that the tack could not prejudge her heritable right, at least it was sufficient to stop the removing. To this triplied, that after the the common law, L. 25. Codicis de Loc. et Cond. Si quis conductionis nomine, agrum vel aliam quamcunque rem accepit, possessionem prius restituere debet, et tunc de proprietate litigare, and so before ever the defender be heard to clothe herself with any title or heritable right, she behoved to remove, salva sibi quæstione proprietatis et dominii in alio judicio; which triply was admitted by the Lords, and the defender decerned to remove without prejudice to her heritable right in judicio petitorio.
Fol. Dic. v. 1. p. 432. Spotiswood, (Removing.) p. 277.*** Colvil reports the same case.
James Cunningham pensioner of Lesmahago, pursued a woman called Cook, to flit and remove from a mill and certain lands. It was answered by her, that she was heritably infeft unto the same lands by umquhil Andrew Cunningham his predecessor, and whose person the said James represented. It was replied, that notwithstanding of any infeftment given and disponed to her by the said Andrew, she ought to flit and remove, because since the date of the said infeftment, and sasine following thereupon she had taken tack and assedation of the said Andrew, and so acknowledging him once as to be tacksman, she behoved to flit and remove after the ish of the said tack, at the instance of the said James, who was una et eadem persona cam defuncto fictione juris. To this was answered, that she being heritably infeft and the tack expired, the tack after the expiring of the same could nullo modo prejudge her heritable right and infeftment; and that when any person is warned to flit and remove, the exception of heritable infeftment and sasine before the warning will ay stop the removing. To all this was answered, partim ab advocatis partim inter dominos ipsos, quod secundum jus municipale in L. C. Locat. quod si quis conductionis titulo, agrum vel aliam quamcunque rem accepit possessionen prius restituere debet, et tunc de proprietate litigare, and so after the meaning of the said law, or ever the defender be heard to clothe her with any title or heritable infeftment of the property of the said land, she behoved to flit and remove, salva sibi quæstione proprietatis et dominii in alio judicio. The which allegeance was admitted by the Lords, and the defender decerned to flit and remove without prejudice of the heritable right, in judicio petitorio.
