Process against Sub-Tacksmen and Intromitters, with Subjects hypothecated. - What if caution or payment has been offered by the Intromitters, or if sufficiency has been left to answer the rent.
Lady Dun and her Husband, v. Lord Dun
Date: 31 March 1624 Case No. No 23.
Intromitters with a tenant's corn are liable to the landlord in valorem for the rent of that crop; though they acquire the same for an onerous cause, and bona fide, not knowing it to be the corn of that farm.
The defence, that at the time of the intromission with the corns, the tenant had as many cattle on the farm as would pay the rent, was repelled, because corn is in the first place liable to the hypothec.
Click here to view a pdf copy of this documet : PDF Copy
In an action pursued by the Lady Dun, and Sir John Carnegy, her spouse, against the Laird of Dun, as intromitter with the corns growing upon the lands of, pertaining to the Lady, pursuer, in liferent, which lands were possessed by a tenant, to whom the same was set for a certain farm yearly, and from the which tenant the defender had received all the corns growing upon the said liferent lands; and therefore he was pursued for payment of the farm, addebted to her therefor by the tenant; the defender alleging that the tenant foresaid, as he occupied the pursuer's lands, the crop libelled, so also he was the defender's tenant in other lands, the corns growing upon both the lands being led, as they were wont of before, to the barn and barn-yard, upon the ground of the excipient's lands; and at the term of payment he received from the tenant foresaid, delivery of his own farms by peck and boll, which he might very lawfully do, and had no necessity to know where the corns received grew, whether on the pursuer's liferent lands, or not;—this allegeance was repelled; for the Lords found, that the corns growing upon the pursuer's lands, were hypothecated to her for her own farm; and that therefore, according to the quantity of the corns growing upon that ground, intromitted with by the defender, he should be answerable for the farm pro tanto; and where the defender further alleged, that at the time of his intromission, the tenant had as many horse, nolt, kine and sheep, as would have paid the pursuer her farm, and so that he ought not to give back the foresaid corns received by him bona fide, as said is, this was also repelled; for the Lords found, That the corn growing on the ground was first and principally hypothecated to the master for his farm, in the which he was preferred to all others; and that he had his first election of the corns before any other goods pertaining to the tenant, if the master pleased to ask the corns, rather than any of the tenant's other goods, wherein the master had his preference and election before others.
Act. Aiton.Alt. Hope & Fletcher.Gibson, Clerk.
Fol. Dic. v. 1. p. 418. Durie, p. 126.*** Haddington reports the same case.
If any man transport to his barn-yard corns that grew upon my conjunct-fee lands, for any debt or duty auchtand to him by the tenant, I will be preferred to the corns, tanquam debitum fundi, and I will not be put to seek my payment by poinding of nolt, sheep, horse, or goods of that kind, but the corns that grew upon my ground are tacite hypothecated to me for my duty; but if I supersede the tenant till the next crop, ane lawful creditor who has poinded or intromitted with this year's corns for his just debt, will not be compelled to pay back to me the corns that he has received, or prices thereof.
