An assignee to a life-rent tack was found to have power to output and input tenants, although the same was not expressed in the tack.
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There was a woman called Kincraigy that had a life-rent tack set to her and her umquhile first husband, called Lindsay, of a piece of land of the patrimony of Skoon. Thereafter she made and set another tack of the same lands to her eldest daughter, who, by virtue of the tack, warned the possessors of the ground to flit and remove. It was alleged by the possessors, That the second tack could give no action, because it bore not in it power to out and in-put, nor yet was the acquirer of the tack in possession. 2dly, Alleged, That the first tack was set to the mother and her husband, and their sub-tenants and cottars, nam ita canebat, and so the mother had no power, by reason of her first tack, to set tacks, but to her own sub-tenants. To all this was answered, That as to the first, the tack that was set in life-rent to the wife and her husband, albeit there was not expressed into it power to in-put or out-put, and as the first acquirer of the tack, that was the woman, might not set to others than her sub-tenants, ut canebat assedatio, it could not militate in this case, nor take away the tack set to her own daughter, quia non fuit extrema persona, but behoved to be presupposed, in like manner as her own sub-tenant that laboured the ground. The Lords repelled the exception, and found, That the second tackswoman had power, by virtue of the same, to warn the tenants, and to in-put and out-put.
Into the same action, and betwixt the same parties, it was alleged, That the woman had no power to set the said tack to her daughter, because the defenders offered them to prove, that the said woman, being married to another husband, Alexander Blair, took another tack of the place of the Skoon, and containing in it a greater duty, and after the decease of her husband, Blair, her sub-tenants, in her name, paid the duties of the same to the Lords of Skeen; and so, consequently, she had tacite passed from her tack of life-rent, that she had first nam fuerunt hæc incompatabilia to take a tack of a smaller duty, and thereafter another of a greater duty. To this was answered, presently, at the Bar, partly by reasoning among the Lords, That the pursuer, being once in conjunct tack with her husband, that, after his decease, she could not be denuded, in any manner of ways, but by the express renovation of the same, nam expressa nocent, et non expressa non nocent; and as the allegeance was not relevant, alledging that their subtenants had paid the greater duty to the ——— and Abbots of Scoon, except they would allege it was by her command, the Lords found, That the exception was relevant, and that, in taking of the last tack, she passes from the first, albeit there was no express renunciation of the first.
