Subject_1 ANNUALRENT, INFEFTMENT OF. Subject_2 An Annualrenter cannot remove Tenants.
Auld, Butter-man in Edinburgh, v. Yule and Thomas Auld
Date: 9 March 1630 Case No. No 8.
An annualrent cannot remove tenants; nor does the infeftment bar the heritor from setting new tacks.
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Auld being infeft by the heritor, with consent of his wife, conjunct-fiar in an annualrent out of their lands; after which the husband, who was heritor of the lands, dies, and the relict, who was liferenter, and who consented to the infeftment of an annualrent after her husband's decease, setting a tack of that land, after which tack the annualrenter comprises from her, and from the heir of the heritor, the whole right of the land, for diverse years owing of the annualrent; and upon the comprising, being infeft, pursues removing against the relict, and the tacksman; wherein the Lords found, That the compriser, during the tack, could not remove the tacksman, the tack being set before the denunciation of the comprising, albeit after that the setter had consented to the right of the annualrenter; for the Lords found the tack, albeit posterior to the annualrent, yet before the comprising, was not good to stay poinding of the ground for the annualrent, but was sufficient to stay removing upon the comprising; and it was not respected, what the compriser answered, That the comprising ought to be drawn back to his own cause, viz. The time of the infeftment of the annualrent, after which time he alleged, nothing could be done by the granters thereof, that might derogate to the effect thereof; which was repelled: Neither was it respected what he replied, That the ground might become unanswerable to pay the annualrent, and so the house becoming ruinous, he might effectually comprise the property therefor, wherein, as the author of the annualrent could not impede the removing, no more could the tacksman qui habet causam ab eo; which was also repelled. (See Scarlet against Paterson, Durie, p. 496. [at the end of that Dceision,] voce Indefinite Intromisson.)
Clerk, Gibson.
Fol. Dic. v. 1. p. 46. Durie, p. 503.
