A party warranted lands to be free of teind. This held to be a virtual assignation of a tack of the teinds.
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The Laird of Kincraig, in his son's contract of marriage, being obliged to infeft his daughter-in-law in certain lands, and therein obliging himself to warrant these lands to her free of all teinds, except the payment of seven bolls of victual yearly, for these are the very words of the contract; the father-in-law being then tacksman of these teinds for payment of the said tack-duty, and, after the son's decease, the relict continuing divers years in possession of these lands and teinds for paying of this duty, the good-father being still in life; thereafter the good-father, in another contract of marriage of one of his daughters, for security of the sums promitted in tocher to his good-son, makes him assignee to his said tack of the said teinds; whereupon the relict foresaid of his son is pursued for the said teinds of the lands provided to her by her said contract of marriage; who opponing the foresaid clause of the contract, bearing her father-in-law to be obliged to warrant the said lands to her free of all teinds, except the said seven bolls, which she alleged, with her possession sensyne, to be as good to her as if she had obtained an assignation to the tack, or had been made sub-tackswoman; and the other alleging, that it was only a personal bond, which obliged himself and his heirs, and could not exclude the real right now standing in the person of a singular successor, who had valuably acquired it ex causa onerosa; the allegeance was sustained, and the clause was found sufficient to maintain the defender in her right to bruik the lands against any whosoever claimed right to that tack.
Act. Aiton.Alt. Nicolson.Clerk, Gibson.
Durie, p. 440.
