Tacks let for grassums received by the vassal, and cases granted to the detriment of the superior, fall by the forfeiture of the vassal; but tacks let for a sufficient rent are valid against forfeiture.
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General Dalziel, as donatar to the forfaulture of Muir of Caldwell, pursues the tenants of Caldwell to remove; who alleged absolvitor, because they bruiked by tacks from the forfault person, clad with possession before the forfaulture or crime, whereof there are terms to run. It was answered, That the defence is not relevant, for forfaulture returns the fee to the King, in the same manner as he granted it, without the burden of either infeftment, tack, or servitude, not consented to by him; for, by the nature of all feudal rights, there is implied the fidelity of the vassal as a legal resolutive clause, and therefore contrary deeds do annul and resolve the same, & resoluto jure dantis resolvitur jus accipientis; the vassal's right being void, all rights flowing from him fall therewith, which holds not only in forfaulture, but in recognition, disclamation, &c. And forfaulture in this case is not as a statutory penalty, but is in effect as recognition by the delinquence of the King's immediate vassal against him by rebellion; for, if a sub-vassal of the King's had been forfault, the feus or tacks granted by him would not fall, but the King would have right by the forfaulture to the sub-vassal's fee, burdened as it was the time of the rebellion; because, by the forfaulture, the right granted by the King to his immediate vassals, did not become void, neither the sub-vassal's right, nor any right from him, but was adjudged to the King as his moveables were; and the King would present a sub-vassal to his vassal in the same condition as the former sub-vassal was, with the burden of infeftments and tacks granted by him before the crime. But here the King's immediate vassal being forfault, his right, and all depending on it, is void. And it cannot be denied, but that in the case of ward, the tacks could not defend against the superior, but sleep till the ward be ended, and then revive, because the vassal's right revives; but in forfaulture or recognition are simply void, because the vassal's right can never revive; so that, as solemn infeftments fall by forfaulture or recognition of the immediate vassal, granter thereof, so much more tacks, which are but contracts of location, which are personal, and no real rights. And albeit, by the statute of King James II. tacks are declared valid against buyers or purchasers, whereby they become as real rights against them; yet that statute had no effect against superiors who do not purchase or succeed to their vassals. It was replied for the Tenants; 1mo, That tacks clad with possession before the crime are real rights in suo genere; and there is no reason to extend forfaulture against them, nor is there any parity from the excluding of infeftments given by vassals, which carry away the property or servitudes which have no remuneratory cause profitable to the superior; but tacks are profitable both to vassal and superior, and for public good; for thereby tenants are induced to plant and improve their grounds, whereof they will be altogether careless if they have not standing tacks, nor will they acquire them, if they be not secure against forfaulture and recognition; and it is a public interest not to incite tenants to follow their masters in rebellion, which they will the more easily be induced to do, if their masters rebellion shall not only forfault but his right his tenants right; wherein if they find themselves secure they will not be induced to follow him, but rather suffer him to forfault himself alone; seeing he cannot prejudge them if innocent; and that this hath been the constant practice and opinion of this kingdom, is clear from this, that it cannot be shown that a donatar of a forfaulture of recognition did ever remove a tenant by any sentence; and, on the contrary, Craig, l. 2. dieg. 10. p. 206. asserts, that tenant's tacks are valid, albeit the setter in forisfacturam inciderit; and Lethington observes the same to be so found in the case of Home of Manderston against the Tenants of Oldhamstocks, in anno 1570, No 24. p. 4684., as appears by the decision produced, bearing the debate from the parity of infeftments, and in that case he mentions another decision before to the same effect. Neither is there any way to validate tacks against forfaulture or recognition, seeing there is neither custom nor style of confirmation of tacks, as there is of infeftments. 2do, Whatever might be pretended against lucrative tacks for an inconsiderable duty, to the great prejudice of the superior, in the same way as he is prejudged by infeftments; yet tacks set for a competent avail of the lands, as they were worth the time of the set, or upon grassums equivalent to the ease, must stand effectual against the superior; because as to these they are necessariæ et ordinariæ administrationis, wherein the vassal, before any crime, acts profitably both for himself and his superior; and without which lands cannot be improven, as in the case of tacks set by a tutor, which stands valid after the tutory is ended, if set for a just avail. It was duplied, That nothing can be pretended here from custom, but we must recur unto the ground of law, resoluto jure dantis, &c. And though tacks have not been called in question, that was the favour of donatars, and custom is not inferred from negatives; and as to the practique, it is old and not authentic; and Balfour, whose practiques are known, hath observed a contrary decision;* and there is good reason to extend forfaultures in a time wherein rebellion hath been frequent. It was triplied, That Lethington's practiques are as authentic as Balfour's, which doth not mention any debate, or whether the tack there in question was for a small duty to the prejudice of the superior; and all the reasons adduced for tacks, militate for all tacks, although for an elusory duty, which have not been accustomed to be confirmed, yet no doubt they may be confirmed.
The Lords found, that tacks set to tenants who were innocent clad with possession before the crime, and set for a just avail, as the lands were worth the time of the set, and for ordinary endurance, were valid against forfaulture, but sustained not tacks set for grassums, received by the vassal, and eases granted to the detriment of the superior; and for instructing whether the tacks in question were for the just avail, the Lords granted mutual probation to either party.
Fol. Dic. v. 1. p. 313. Stair, v. 2. p. 258.
* All that appears in Balfour, relative to the case alluded to, will be found p. 4685.
*** Gosford reports the same case:
In a removing pursued at the instance of General Dalzell, as being infeft in the property of the lands of Caldwell, upon forfeiture of the deceased Laird of Caldwell, against the tenants, it was alleged for the defenders, That they had standing tacks of their several roums, granted to them long before the forfaulture, for years yet to run.—It was answered, That these tacks could not defend them, because the right and property of the lands being come in the King's hands by reason of forfeiture, the tenants tacks fall in consequentiam; seeing by our law in wards, non-entries, recognitions, and liferent escheats, the lands returning to the superior by the vassal's delinquency, all subaltern rights, to which the superior did not consent or confirm the same, fall in consequentiam, and the right of the lands and property is consolidated with the superiority, and thereby the superior hath plenum dominium, as if the lands had never been disponed by him to the vassal, and may remove all tenants, notwithstanding of their prior tacks, which is grounded upon this maxim of law, that resoluto jure dantis resolvitur jus accipientis; likeas by an old practic of Balfour's*, he declares that it was so decided, and was never since controverted.—It was replied, That the allegeance stood relevant notwithstanding; first, because tacks of lands are of their own nature far different from heritable rights and dispositions, which, by their own nature require the superior's consent or confirmation, otherwise ex natura contractus feudalis, they return to the superior by recognition, or the vassal's committing such other deeds as the law ordains shall cause the vassal lose his right of property; seeing no law or act of Parliament requires the superior's consent or confirmation to tacks set to tenants, which, of their own nature are but temporary, and for a just duty; likeas by acts of Parliament they are declared to stand against a singular successor, and especially by the 205 act, 14th Parliament, King James VI. they are only declared null where they are set after the crime of treason. And Craig, Dieg. 10. lib. 2. p. 206. affirms, that tacks and assedations are not thereby extinguished etiam si vassalus in fori faturam acciderit. And Maitland of Lethingtoun, in his Practics, observes the case to be so decided betwixt Home and Tenants of Old-hamstocks, conform to another practic prior to that case, No 24. p. 4684; so that the tacks being set for a just and yearly duty, or for grassums and a less duty during the years of the tack, the same cannot be extinguished by forfeiture, as in the case of recognition or wards, where the lands and property return to the superior, without which he would be altogether prejudged of the benefit of the law, appointing the return of the lands in satisfaction of the injury and delict committed by the vassal. And as to the tack of ward-lands during the ward, they are not extinguished, but are declared to sleep during that time, and to revive again after expiring of the ward; and in recognitions and escheats, the vassal's right being dissolved ex natura contractus feudalis, the tacks set by the vassals
* See p. 4685.
do fall in consequentiam; whereas in forfeitures for treason, whether the vassals hold of another superior, or immediately of the King, the lands fall to the King and his donatar, as the punishment appointed by the act of Parliament for the crime of treason, with all other estate and goods, moveable and immoveable, bonds, or other rights which belong to the person convicted of treason, as being crimen publicum, and to which all subjects, whether they be vassals or not, are liable to that pain and punishment; but thereby tacksmen are not under that maxim.——The Lords having seriously considered that case, and long debated amongst themselves, both upon the ground of law and the inconveniences that might arise to the King's interest, did find that there was a great differences betwixt a tack set for a whole duty by a vassal, and tacks set for grassums for many years to run, paying but inconsiderable duty, which are of the natures of rentals, whereby there being sums of money advanced to the vassal forfeited, the King might suffer prejudice during all these years; whereas a vassal, before the forfeiture, setting tacks for a full duty, doth nothing but that which is ordinaria administratio feudi, and thereby the lands being meliorated, the King, who succeeds by the forfeiture, doth immediately reap the benefit thereof, having his lands full and tenant-stead; which by the extinguishing of the tenant's tacks, he would be forced either to plenish or stock the same upon his own charges, or set the same for less duty than were paid by the former tacks; and therefore the Lords decerned, That where the tenants were innocent, and did not concur in the crime, and had but tacks of an ordinary indurance, that they should stand valid for the years to run after the forfeiture, seeing no law, practice, or custom did ever require a consent or confirmation of such tacks; as likewise, that in politie for the good of the King and kingdom, tenants, who were innocent, and have employed their fortune and means in labouring and improving of the lands set in tack, should not be turned out of their possessions, which would encourage them not to concur in any act of rebellion and treason; whereas, were they exposed to that great prejudice and loss, they might easily be induced to assist and join with their masters in treasonable acts upon that pretence, that in law, by the fall of their masters, of necessity they must be removed from their livings and possessions, not knowing where to settle themselves, but must be exposed to great trouble and danger; and if upon the reasons of convenience and inconvenience it were fit to judge otherwise, it ought to be done by an act of Parliament, et eget constitutione imperatoria.
