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The Lords found, that in a removing pursued by one ——— against Makcarro, that a tenant who had a tack to him in anno 1614, to enter at the expiry of the other tack, to be a sufficient defence against the pursuer, who warned upon his infeftment granted to him by their common author in anno 1613, long before the date of the defender’s tack.
Fol. Dic. v. 2. p. 421. Haddington MS. No. 2655.*** Durie reports this case:
An exception being admitted to probation against a removing pursued by M'Carro against ———excipient, bearing, That the excipient had tacks to run for terms the time of the warning; and for proving thereof, two tacks being produced, one whereof the last year of it was expired that year of the warning, and another tack set some years after the first tack, for certain years therein contained, whereof the entry was appointed to begin at the expiring of the other former tack, and which posterior tack was dated by the space of two years preceding the pursuer’s right; against which tack it was objected by the pursuer, that the same could not prove the exception, because, albeit the same preceded the pursuer’s heritable right, yet seeing the time of the entry thereof was deferred to the time of the expiring of the first tack, before the expiring whereof the pursuer had acquired the heritable right of the lands, and so he was infeft before the time of the defender’s entry; and the intervening of that heritable right in his person, who was singular successor in the right of the lands, was a lawful impediment why the second tack, which was a several and distinct right from the first, and not inserted in one body, and to the which the excipient could not be heard to ascribe his possession, in respect of the first tack, at that time standing unexpired, could not be obtruded to take effect against the pursuer’s heritable right foresaid, he being singular successor, as said is; and the said tack against him could not be respected, as cohering with the former tack, but only ought to be respected, as if it had been set, appointing the entry thereof to begin at the year after the warning specified; for in effect it is so conferred; and if it had been so set, it would not have defended against the pursuer’s heritable right, but might have produced warrandice against the setter ;—this allegeance proponed against the tacks was repelled by the Lords, and the tacks sustained, seeing they were lawfully set ab initio before the pursuer’s right.
Act. Hope and Miller.Alt. Nicolson, younger.Clerk, Sir William Scot.
Durie, p. 32.
