University, how far Bound by the Deeds of the Masters.
The Old College of Aberdeen v. The Town of Aberdeen
Date: 13 July 1669 Case No. No 27.
The college of Aberdeen setting a tack of teinds, to continue during their principal's life, and five years thereafter, with an obligation to renew the life-tack from time to time for ever; the Lords found, that there being no sufficient cause onerous alleged for this obligation of renewing a perpetual tack, it could not be sustained in part, but that it was totally null.
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The principal and the remanent members of the Old College of Aberdeen, having set a tack to Dr Dun of his teinds during the principal's life, and five years thereafter, and bearing an obligement to renew the like tack from time to time for ever; the Doctor mortified the same to the Town for pious uses, after the death of that principal many years. The College now pursues the possessors of the lands upon an inhibition for the full value of the teinds; and the Town defends upon the foresaid tack. It was answered for the College, That the tack is only for the principal's life, and five years after, which is expired; and as for the new obligement, to renew such tacks for ever, it was answered, 1mo, Albeit a tack were conceived in these terms it would be null, as wanting an ish; 2do, Obligements of the present incumbents in universities are not obligator, but where there is an equivalent cause onerous received for the good of the university. It was replied for the Town, That an obligement to grant a tack by them who can grant it, is equiparate to the tack itself, which requires no other solemnity; as an obligement to grant an assignation, is equivalent to an assignation; and that there is here a cause onerous of the university's obligement, because the tack bears expressly 300 merks of grassum, and that the former tack-duty was only ten merks, which by this tack is made 50 merks; and albeit it want a definite ish, yet it must be valid for a renovation during this principal's life, and five years after, and it is homologate by the College, who have received the same duties several years since the first tack expired. It was duplied for the College, That this tack is not valid for any time after the first ish, because by the act of Parliament 1617, tacks by beneficed persons under prelates are prohibited for longer time than their own life, and five years after; and these teinds are a part of the benefice mortified to the College; and they must be accounted as beneficed persons; and albeit the teinds were augmented to 50 merks, yet they are worth 200 merks; and for the receipt of the duties after the first tack, it is per tacitam relocationem, and no homologation of the obligement to renew the tack.
The Lords found, That the College was not comprehended under beneficed persons; but found that there was no sufficient cause onerous alleged for this obligement of renewing a perpetual tack, and would not sustain the same in part, and found it totally null; and that the receiving of the former duties was no homologation thereof.
Fol. Dic. v. 1. p. 158. Stair, v. 1. p. 635.*** Gosford reports the same case.
In a spuilzie of teinds, pursued at the instance of the King's College against the Town of Aberdeen, as having intromitted with the teinds after inhibition; there was a defence proponed upon a tack of the teinds set by Dr Leslie, when principal, with consent of the masters, to Dr Dun, then heritor, who had mortified both stock and teind for maintenance of a minister and master of the grammar school; in which tack there was an obligement, that after expiring thereof, the masters should renew a tack as the former was, and continue so to do without ish or end; whereupon they alleged, that that obligement would defend them against the masters of the university for ever. It was replied, That the bond was null, as being contrary to the act of Parliament 1617; in respect the saids teinds were a part of the sub-deanry of the cathedral kirk of Aberdeen, which was gifted to the Old College by King James in anno 1579, so that no longer tack could have been given for the said benefice, but for the granter's lifetime and five years thereafter; 2do, A bond to grant a tack of teinds without any end or definite time, was ipso jure, null.
The Lords having considered this case, as being of general concernment to all the universities, did find, that the present masters might grant tacks during their own lifetime, where they were not set to the diminution of the rental; but they being usufructuary and administrators only, could not give bonds and obligements continually to renew, and that such bonds were not valid against their successors. And this was done, not upon the ground of the act of Parliament 1617, which did only prohibit beneficed persons, but because the College was corpus universitatis, and in the like condition with royal burghs, which could not oblige their successors to the prejudice of their patrimony and common good, as this bond was, seeing the tack-duty was only 50 merks, whereas the worth of the teinds was confessed to be 200 lib. And that, notwithstanding, it was alleged for the defenders, That there was a grassum of 300 merks paid by Dr Dun; and that when he required this last tack, there were tacks standing unexpired for the tack-duty of 10 merks only: and that since the expiring of the last tack, the masters of the College had homologate the obligements to renew, by accepting the tack-duty of 50 merks for several years: For, the Lords found, that by the new tack, whereof they had enjoyed the first benefit for the whole years thereof, and many years thereafter, they had gotten far more benefit than the grassum did amount to, and that the acceptance of the tack-duty after the expiring thereof was only a tacit relocation, but did not homologate the obligement as to all years thereafter; and the magistrates having served inhibition, did interrupt the same, so that the obligement being null in law, could not stand valid for any years after the inhibition.
