A party took lands for five years, of which he possessed two.
Found entitled to quit possession at any term, no writ having intervened.
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In a pursuit to labour the ground, conform to a five years tack thereof, set by Alexander Keith to the tenant, and accepted by the tenant, and according whereto he had laboured the room two years of the five, which was referred to his oath; it being questioned, if the tenant might, after he had bruiked the room two years of the five, the tack not being perfected by writ, but only offered to be proven by the defender's oath, thereafter give over the room to the master, and that thereby he was freed of the tack; the master contending, that he ought to bruik it out during the space agreed upon, the Lords were of the mind, that albeit the party had by his oath granted the condition, and also that he had confessed that he had laboured the land two years, yet that thereafter he might repent, and that it was lawful to him to quit the room at any year thereafter, before the Whitsunday, and that he was not bound to keep the said tack, it not being perfected by writ, albeit he had bruiked the lands two years of five; so that these sorts of pactions were not found obligatory, except writ had been made thereon; and because Mr Alexander Keith was debarred by horning, and that Mr Robert Mowat, who was donatar to Alexander Keith's escheat and liferent, assisted the pursuit, Alexander himself being debarred, as said is, although the Lords found ut supra, yet the decision run on this ground, that the singular successor might be repelled by this exception, and that the defender had competent place of repentance against him, there being no writ to make the security real, whereby either party contractor and their successors might be equally bound to others.
Act. Stuart and Mowat.Alt. Nicolson and Forbes.Clerk, Gibson.
Fol. Dic. v. 1. p. 560. Durie, p. 816.
