A tack was granted, to be void if the tenant's daughter married without the landlord's consent. Found, that this consent must be express in order to validate the tack; and silence at the marriage, and future good correspondence were not sufficient to infer consent.
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Against a removing the defenders alleging a tack set by the pursuer's husband and herself; and the pursuer replying, that it bore a condition, “That if the defender's daughter married without her husband's consent, the tack should be null;” this reply was received hoc ordine without declarator, which was not found necessary to precede, as the defender alleged; neither was it found necessary that the pursuer should qualify, that he disassented from the marriage of the daughter to her husband, with whom she was married; but to purge the condition, and for maintaining of the tack, the defender was holden to prove that he gave his consent, which if he could not qualify, the tack could not subsist, being set with that provision; and it was not sustained as sufficient, that the person whose consent was required was now dead, and that he lived many years after the marriage, and never exprest his dislike and dissent; and their bands were publicly proclaimed, and not opponed by him, and that after the marriage, he contracted with them in sundry bargains, which all the defenders alleged, ought now to be found as good as an express consent, after intervening of 25 years and more, and that long possession by the tack since, during which space it was never quarrelled by the husband of this pursuer, which allegeance was repelled, and the express consent required.
Act. Craig.Alt. Belshes.Clerk, Gibson.
Fol. Dic. v. 1. p. 189. Durie, p. 474.
