Whether a tenant holding of a liferenter, could be removed by a comprise, to whose infeftment of annualrent, the liferenter had consented?
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Alexaner Auld, butter-man, who had comprised a tenement in the Canong-ate for bygone annualrents, wherein he was first infeft in the said tenement pursues removing against John Thomas, occupier of a little outshot of the said tenement. It was alleged by him, That he had tacks to run, set by the liferenter of the said tenement during his lifetime, and that long before the said comprising, and by virtue thereof in possession. It was alleged by the pursuer, That the tack cannot defend the defender, because he cannot be in better case than the liferenter, setter of the tack; and she was denuded of the property by a deed preceding the tack, viz. by consenting to an annualrent out of the said tenement, whereupon the property was comprised; and so the annualrent being the cause of the comprising, and prior to the tack, the comprising should be drawn back ad suam causam; and so after the consenting to the said annualrent, she might do no deed to prejudge the same, no more than if she had consented to the alienation of the property. To which it was duplied, That the consent to an annualrent was not habilis modus, to have denuded her of her property; and, as the person who had only an annualrent out of the tenement could not by that right remove a tenant, no more could that person, by virtue of a comprising of the property since the byruns of the said annualrent, remove a tenant, who had a tack prior to the compriser. Which exception and duply the Lords found relevant.
Auchinleck, MS. p. 196.*** Spottiswood reports this case:
Alexander Auld, butter-man, pursued a removing against John Thomas, tenant of a tenement in the Cowgate, comprised by the pursuer. Alleged, Absolvitor, because he had tacks of the said tenement granted to him by Janet Yule, liferentrix thereof, for terms yet to run, and that before the pursuer's comprising, and, by virtue of his tack, ever in possession since. Replied, The tack cannot defend the excipient, because the liferentrix, before the granting thereof, was in effect denuded of her liferent, and had no power to set a tack, in so far as her umquhile husband, with her consent, having disponed an annualrent to the pursuer forth of the said tenement, he has comprised the property thereof for the byruns from the liferentrix and her husband's heir, and is infeft thereupon holding of the superior; and so the comprising proceeding upon that disposition of annualrent whereunto the liferentrix consented, as it would be a sufficient ground to remove the liferentrix herself, so it must be against the defender, having right from her by tack. Duplied, Her consent to the annualrent denuded her not of her liferent, which stood notwithstanding thereof, by virtue whereof she might lawfully have set tacks. Triplied, The comprising proceeding upon a deed done by the liferentrix herself, must be drawn back ad suam causam, viz. the alienation of the annualrent whereunto she consented, which being before the defender's tack, the Iiferentrix could not set the same. The Lords sustained the exception.
Spottiswood, (Removing.) p. 288.
*** Durie's report of this case is No 8. p. 570. voce Annualrent Infeftment.
