Consent not presumed, when the Deed can be ascribed to another Cause.
Home v. Corsar
Date: 30 November 1671 Case No. No 69.
The receiving two years' duty as a tack-duty, found not to infer homologation of the right as a tack, which was contended to be a wadset.
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Umquhile Alexander Dickson by a contract betwixt him and Robert Corsar, for the sum of 400 merks, wadsets his lands of Stanifauld, and in the same right there is mention made of a tack, or tack-duty during the non-redemption. Thereafter he infefts Anna Home his wife in liferent of the same lands. She pursues Corsar to remove, who alleged absolvitor, because he possesses by a tack set by the husband before her infeftment, which right the pursuer hath homologated, by granting two several discharges, mentioning and relating this right as a tack. The defender answered, That this right produced being clearly a wadset, having all the clauses ordinary in wadsets, though in one place it mentions a tack, yet that is only of the teinds of the lands, and so it being an imperfect right, on which no infeftment followed, and not being a clear tack, it cannot defend against the pursuer's real right by infeftment. 2do, Albeit it were a clear tack, yet it is null, having no determinate ish, but to endure during the not redemption, which may be perpetual; and such tacks have not been sustained by the Lords against singular successors, and if sustained, they would be of dangerous consequence; for thereby lands might be set for sums equivalent to the value, which would be known by no register; and as to the homologation, it can operate no more than as to the years discharged, and cannot import a consent to this right in all time coming; and though the discharge do mention this right as a tack, an erroneous designation cannot operate against the tenor of the writ; and as a superior receiving a feu-duty, may yet quarrel and impugn the vassal's right as to years subsequent, and will not be excluded by homologation upon receipt of the feu-duty, so may the pursuer quarrel this right, though she hath received two years duty.
The Lords found, that the two years discharges did import no homologation as to years subsequent; but as to the question, whether a tack having no other ish but till a sum were paid, should be valid against a singular successor, there were decisions produced out of Durie for either party, which seemed contrary, yet the Lords did not determine the point, but found the defender's right was no tack.
