Competition betwixt Tacks, and betwixt Tacks and other Rights.
Hamilton of Sheills v. His Tenants
Date: 22 November 1632 Case No. No. 100.
Without natural possession, a tack is but personal, and not effectual against singular successors.
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In a removing pursued by Hamilton of Sheills, the defender alleging, that, by contract passed with the L. Dunrod, who was author of the pursuer's right, and who had disponed the lands to the pursuer heritably, which contract was before the making of this pursuer's right, the said L.Dunrod had obliged him to infeft this defender's author in an annual-rent out of the lands, redeemable under reversion of the sums therein contained; by the which contract he gave also power to the excipient's author to set tacks of the lands libelled, to whom he pleased, and for the space contained in the contract; according whereto he had set tacks to the excipient, which were not yet expired;—this exception was repelled against the pursuer, who was singular successor to Dunrad; seeing the wadset whereupon the defender excepted was constituted only by contract, whereupon no real infeftment or security was expede; so that albeit it might work against the contractor and his heirs, yet it could not be received against the singular successor; and as to the power to set tacks contained in the contract, that was not respected against the singular successor, seeing, according thereto, no tack was set before the pursuer acquired his right; and the tack set since could not be valid against the pursuer, in respect of his intervening heritable right, acquired before the setting of the tack; for that power in the contract to set tacks was but a procuratory and mandate, which was tacit, and in effect revoked rebus integris by the constituent, before the using of the power thereof by virtue of the said heritable right acquired by the pursuer. And it being further alleged, that, by the same contract, the L. Dunrod per verba de præsenti, set a nineteen years tack to the excipient's author, which is yet unexpired, to begin after the said anual-rent was reedeemed; likeas now he granted the same to be redeemed, and discharged the wadset, and confessed the payment of the sum, and took him only to the tack, which behoved to be respected, as if the annual-rent had been legally redeemed;—this allegeance was also repelled, seeing the annual-rent was never redeemed; after which redemption the tack was only appointed to take beginning; and the defender's granting of redemption could not be respected in his prejudice, who was singular successor, to make the tack have beginning, which was conferred to a time, which would never fall forth, seeing the wadset not being valid against this pursuer, the same would never be redeemed, being only personal, and so as he needed never know the wadset, no more could he be obliged to the tack; in respect whereof this exception was repelled.
Act. Nicolson & Gilmor.Alt. Mowat & Gibson.Clerk, Scot.
Fol. Dic. v. 2. p. 420.
Durie, p. 651.
