A tack having been let by a proprietor and his wife, and the rent declared payable to the longest liver of them two, it was sustained, although the woman had no right to the lands.
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In a double poinding, umquhile George Hume, and Margaret Hepburn, his spouse, sets a tack of the lands of _________ to ________ his tenant, for payment of certain bolls of victual yearly, during the years of the tack; which tack being set by the husband with consent of his wife, and subscribed by her, albeit she had no right to the lands, neither then nor thereafter, the tacksman is obliged to pay the duty yearly, during the years of the tack, to the longest liver of them two, and thereafter to their heirs and assignees. The husband dying before the expiring of the years of the tack, and this duty being thereafter in a double poinding questioned, if it pertained to the wife after her husband’s decease, in respect of the conception foresaid of the words of the tack, or to the son of the marriage, heir to his father, who alleged the same to be due to him, and not to his mother; for albeit she had subscribed the tack, and that the duty was obliged to be paid to the husband and her, and the longest liver of them two, during the space of the tack, and thereafter to their heirs, yet that conception ought not to prejudge him, seeing she had never right to the lands; and albeit she had subscribed that tack, yet that ought not to be respected, seeing the ignorance of tenants, who are in custom usually to take the wife’s consent to such tacks of lands set by their husbands, for the tenants either security or ignorance, who will not contract otherwise, ought not to prejudge the heir; and that conception to pay to the longest liver of them two cannot give her right, who otherwise had no right to the lands, and ought to be understood only to be meaned, and to have effect, that it should be paid to them, during their life-times together; specially seeing the relict his mother is sufficiently and well provided to a life-rent of 1700 merks, attour and beside this tack-duty controverted ;—the Lords not the less preferred the relict, in respect of the conception of the tack, whereby the duty was ordained to be paid to her husband and her yearly, during the space of the tack, and to the longest liver of them; for the Lords found, that the clause should work something, and it could work nothing, if it should receive the construction alleged by the son, viz. that it should be understood only during their life-times together; for, as the husband might have appointed the tack-duty to have been paid to a stranger, so he might have agreed, that it should be paid to his wife; and so the relict was preferred, notwithstanding of her provision beside the tack-duty.
For the Relict, Mouat.For the Son, Craig.Clerk, Gibson.
Durie, p. 825.
