Process against Sub-Tacksmen and Intromitters, with Subjects hypothecated. - What if caution or payment has been offered by the Intromitters, or if sufficiency has been left to answer the rent.
Fowler v. Cant, Gray, and Lady Lawrieston
Date: 5 March 1630 Case No. No 25.
In a competion between a landlord and a person who had purchased corns from a subtacksman, and had paid the price thereof, the former was preferred.
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Mr John Cant, Alexander Gray, and the Lady Lawrieston being complained upon, in a double poinding, raised by Alexander Fowler tenant in Lawrieston, who was distressed by both parties for his farms crop 1629, Mr John Cant claiming them as being infeft in the land, and so as dominus fundi; likeas he had arrested the same in October, before the terms of payment; and the Lady and Gray, (who concurred claiming them,) because Mr John Cant had set a back tack to Sir Alexander Napier, who gave him that heritable right, for payment of a silver duty, and which Sir Alexander had given a factory to the Lady his wife to intromit with the farms, and dispone therupon; likeas she had sold the farms the years libelled to the said Alexander Gray, who had paid her therefor, and the said Fowler the tenant had given at her desire his bond to the said Alexander Gray, for delivery of the victual to him, whereby Gray alleged he had right to the said victual, seeing his bond preceded the arrestment used by Mr John Cant. The Lords found, that the farms of the land were liable to the heritor, notwithstanding of the back-tack set by him, and notwithstanding of the tenant's bond, given to Gray who bought the same; for they found, that by the granting of a back-tack for payment of a silver duty to the granter of his right, at the time of the acquiring of his right, the heritor setter of the tack was not denuded of the right, which he as master of the ground had to the fruits of the ground, but that the same remained ever hypothecated to him for the said back-tack duty, until he were paid thereof, and that he might take himself to the ground, and to the possessors thereof, or any intromitters with the fruits of the same, for payment of the said duty, which he might lawfully do, albeit he had never discussed his own tacksman, nor had ever charged him therefor, and the creditor who had received the tenant's bond, was found to have no right thereto.
Act. Stuart.Alt. ——.Clerk, Scot.
Fol. Dic. v. 1. p. 417. Durie, p. 499.
