Action sustained at the instance of a tacksman for the rent of lands, against a person who had thereafter acquired another tack from the same heritor, although the first tacksman had left his possession, and the lands had been possessed by the heritor for five years before the granting of the second tack.
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In an action betwixt Balveny and Innes, for payment of the duty of certain lands, set in tack by the Earl of Murray, heritor of the lands, to the pursuer, and for which the defender, as possessor of the lands, was convened for the crop 1623, and ever since; the Lords sustained this action against the defender, albeit he alleged, that he could not be pursued therefor, seeing he had acquired a tack of the same lands from the pursuer's author, viz. the Earl of Murray, by virtue whereof he hath been in possession these eight or nine years by-past; and although the pursuer's tack be anterior to his tack, yet he cannot be found to be an unjust possessor, nor in mala fide to bruik and continue his possession by virtue of his tack, seeing the Earl of Murray, their common author, being heritor of the land, was five years in possession of the same lands immediately preceding the setting of the defender's tack, and was never interrupted therein by the pursuer; and so the heritor being in possession when he set him the tack, he ought to be maintained in his possession and right; and the pursuer cannot repeat the duties by virtue of his anterior tack, never shewing any deed quomodo desiit possidereso long ;—this allegeance was repelled, in respect that the pursuer's tack was anterior, and that he offered to prove that it was clad with real possession for the space of ten years together, and that he needed not condescend quomodo desiit possidere,for neither the Earl of Murray's nor this defender's possession could be found lawful within the years to run of the pursuer's tack.
Act. Hope & GibsonAlt. Hay.Clerk, Gibson.
Fol. Dic. v. 2. p. 425. Durie, P. 340.
