A contract was made between a liferentrix, her son, and his tutor, on the one part, and a third party on the other. Though she subscribed, and was in possession, found null even as to her, not being subscribed by the tutor.
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There was one called Thaine, that pursued one Cant, the spouse of umquhile Colonel Balfour, for delivering of a tack and assedation made by form of contract to the said pursuer. It was alleged by the defender, That the said tack ought not to be delivered, because the said tack and assedation was made contracting for her part liferent, and her son pupil, as fiar, and his tutor for his interest; and true it was, that neither her son, as fiar, nor his tutor, had subscribed the same, it ought not to be delivered prout de jure C. De fid. instrum. L. 17. nam contractus non aliter vires sumunt nisi in mundum fuerint recepti et subscriptionibus partium confirmati, and into that time that they be perfected, and summa manus be imponed unto them locus est pænitentiæ; and so the said tack ought in no manner of way to be delivered. To this was answered, That the defender ought not to be heard to allege that the tack was imperfected, because she had ended it, subscribed and perfected for her part; and as to the pupil and his tutor, during her lifetime, they could have no interest, because she was liferenter of the lands, which were set in tack and assedation et utile per inutile non debuit vitiari.—The Lords found by interlocutor, that in respect the said tack was imperfected and unsubscribed by all the hail parties contained thereintill, that the same should not be delivered licet nonnulli dominorum fuerunt in contraria opinione.
