Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.
Crichtone v. Carruthers of Hoilmaynes
Date: 1 December 1671
Click here to view a pdf copy of this documet : PDF Copy
In this cause the Lords found,—where a man had got a tack of lands, and the same was delivered blank in the ish or endurance of the tack, only the receiver of the tack grants a back-bond of the date of the tack, declaring that the tack was set for nineteen years. Thereafter he fills up eighty years in the tack, and assigns it for onerous causes to a third party. Which third person, after the elapsing of the nineteen years, is warned to remove. He defended upon his tack for years yet to run. Replied,—His author, by back-bond of the date of the tack, (and so is pars contractus et pactum incontinenti adjectum,) confesses he had got it blank, and that it was to endure but nineteen years. Duplied,—The back-bond is nothing to him; who, seeing a simple tack relative to no back-bond set for eighty years, he was in bona fide to take a right thereto, and had paid a sum of money therefore; and that the pursuer justly suffered, in trusting his cedent with a blank tack.
The Lords found the back-bond could not meet the singular successor, but that the tack behoved to stand good for all the years filled up in it quoad him; unless the pursuer will say that the assignee was particeps fraudis, and knew then of the back-bond.
The advocate fought mightily against this interlocutor; but in my humble opinion it was bene judicatum.
Vide Dury, 21st December 1621, L. Bambarro. Vide supra, 25th February 1671, numero 154.
