Subject_1 ADJUDICATION and APPRISING. Subject_2 APPRISING.
Wallace v. Harvey
Date: 11 July 1627 Case No. No 8.
A tack is granted before lands are denounced to be comprised. If the tacksman obtain possession before the compriser be infeft, the tacksman will be preferred.
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In a suspension betwixt Wallace and Harvey, Harvey having comprised certain lands from Wallace, his debtor, and being therein seased, obtained decreet of removing; which being desired to be suspended, and reduced upon this reason by Adam Wallace; because the said Adam had obtained tack of the same lands, from whom they were comprised, and that for sums of money truly adebted to him; which tack was set before the lands were denounced to be comprised; and the compriser answering, that he should be preferred to the tacksman; because, albeit the tack was set of a date anterior to his denunciation; yet the same was conferred to a time of entry; before which entry his comprising was perfected; so that the tack not being clad with possession, before his comprising, and by consequence not being real; his comprising intervening before the entry, albeit after the date thereof, was such an impediment, as rendered the tack ineffectual, which could not be real by possession before the entry; and therefore cannot prejudge his real right of comprising, it being a deed legally done in seeking execution necessary for his just debt; whereas the tack was a voluntary deed, done betwixt two good-brethren, and so the more suspicious. And the suspender opponing his tack, anterior to the comprising, and offering to prove the verity of the debt owing to him by the setter thereof; and alleging that his tack being set in May 1623, and the entry to be at Martinmas, the same year, which could not be sooner, in respect the crop growing upon the lands that year, the same being possessed by tenants, the intervening comprising ought not to prejudge his tack; especially seeing his comprising was less real than his tack, before that he was seased upon his comprising; it being true that he was not seased until the year 1625, two years after the comprising, and time of entry of the tack; whereas the tacksman, the first year after the entry, viz. the year 1624, and also the year 1625, had obtained decreet against the tenants, for the duties of the saids lands, and payment conform thereto.—The Lords preferred the tacksman, in this possessory judgment, to the compriser; albeit the comprising was deduced, and ended before the entry of the tack, seeing the compriser had done no diligence two years after the comprising, to obtain himself seased thereon in the lands; so that his comprising, without sasine, being no more real right than the tack, without possession, before the entry; and the same tack, before sasine upon the comprising, being clad with possession, was sustained to maintain the tacksman in possession, until his tack should be taken away, in some ordinary pursuit, by way of action, or by some better argument; but if sasine had been timely taken upon the comprising, or diligence done to have obtained the same, the Lords inclined eo casu to think, that the intervening comprising before the entry of the tack, would have been an impediment, why the tack would never have been effectual against that compriser; no more than it could have been prejudicial to any, who, before the entry, had heritably bought the lands from the setter of the tack: But the not doing of diligence, to obtain sasine so long after the comprising, without the which sasine or diligence it was not real, was the reason of this decision; the compriser was also brother-in-law to him, from whom he comprised, and the tacksman was his brother.—Thereafter, upon the 17th July, the Lords preferred the compriser; because the tacksman's decreet and possession were condescended on by him, to be after the compriser's sasine; whereas, if they had been before his sasine, the tack thereby would have been real, and was the cause of the tacksman's preference; but the compriser being seased before the tack was clad with natural possession and decreets, the compriser was preferred; and also because he alleged, that the common author, from whom he comprised, remained in real possession of the lands himself, to the time of his sasine, which was admitted to his probation; albeit the tacksman alleged, that the summons, whereupon the decreet followed, was executed before the compriser's sasine; and that he had been in natural possession, before the sasine, of the mails and duties; likeas before the same, the possessors of the lands being tacksmen to his author, they took new subtacks of him, and acknowledged his right, and paid to him their tack-duties; which was all repelled, as is above written.
Act. Nicolson.Alt. Cunninghame.Clerk, Scot.
Durie, p. 307.
