A tack clad with 7 years possession will defend the tacksman in judicio possessorio, altho it flow not from a person infeft.
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Mr Patrick Hume pursues the tenants of Brouns-bank for mails and duties, and also Sir Laurence Scot, and one Brown his author. It was alleged for Sir Laurence, That he brooks by a tack from Brown, by virtue whereof he hath been seven years in possession, and thereby hath the benefit of a possessory judgement. It was answered Non relevat, unless it were alleged, that Brown setter of the tack was infeft; for a possessory judgment is only competent to a person having jus standi. But a tack is but a personal right of location; and though the act of Parliament secures it against purchasers, yet there is no ground thence to give it the benefit of a possessory judgment, which is never competent, to an assignation of the duties, upon a disposition or apprising without, infeftment, neither upon an infeftment of annualrent, much less upon a tack unless the tacksman allege that the setter had attained a possessory judgment by infeftment, which therefore behoved to defend his tack. It was replied, That the benefit of a possessory Judgment cannot be founded upon possession even with a title, as by the interdict uti possidetis. But it is a defence peculiai to this kingdom, that any party possessing without interruption seven years either by virtue of infeftment or tack, cannot be quarrelled but by reduction and so secure, not only for all bygones, but until his author be called to produce his rights, and until the defender's right be, reduced as a non babente potestatem, which is never sustained by reply; and therefore though the defender's author be here called, yet not being by way of reduction, the defender is secure, and the same reason that secures possession upon infeftment, though flowing from him, who had no pretence of right, and frees him from the whole duties, should much more free a tenant from paying anymore than his tack-duty, till his tack be reduced. Neither is a tack to be parallelled to assignation to mails and duties, or any incomplete right, a tack being complete suo genere, and established by act of Parliament against singular successors; and therefore, though the author being called, if he had no defence, might be decerned for the full duties, yet the tenant can be decerned for no more but his tack-duty, till his tack be reduced. And therefore, the common stile of this defence having always been, that the defender hath possessed seven years by infeftment or tack, without being put to add by tack from one infeft, the same ought to be sustained relevant in the same case and the same terms: For albeit the pursuer cites a decision observed by Hope, in the case of Drumkilbo, (See Removing.) “That a tack could not defend in a removing, unless it were alleged that the setter had been infeft, which doth also run in common stile;” yet there is nothing there of seven year's possession, which is wholly a distinct defence.
The Lords found, that the tack hath the benefit of a possessory judgment by seven years possession, without necessity to allege that the setter was infeft, and that the tenant is liable for no more but his tack-duty, till his tack be reduced, where the tack bears to be granted by the setter as heritable proprietor.
Fol. Dic. v. 2. p. 90. Stair, v. 2. 470.*** Dirleton reports this case:
In a process for mails and duties, it was alleged, That one of the defenders was in possession by the space of seven years, by virtue of a tack, and had the benefit of a possessory judgment: And it being replied, That he ought to say that he had a tack from a person having right; nevertheless, the Lords found, that it was sufficient to allege that he had a tack, and by virtue thereof in so long possession.
This decision seemed to some of the Lords to be hard, in respect a tenant is not properly in possession, but detinet to the behoof of the setter; so that he could be in no better case than his master, who, notwithstanding of his possession, either in his own person or in the person of his tenant, cannot plead the benefit of a possessory judgment, unless he had or should allege upon some right; and if the master were called, as de facts he was in the said process, it were inconsistent that his tenant should have the benefit of a possessory judgment, and not himself.
Dirleton, No 393. p. 192.*** Gosford also reports this case:
In an action for mails and duties at Mr Patrick Home's instance, as tacksman made by his father of the lands and mill of Burnsbank, against Sir Laurence, both for bygone since he possessed, and in the time coming; it was alleged, Absolvitor; because Sir Laurence had a tack from one Brown, and by virtue thereof had been many years in possession, and ought to defend them in the possessory judgment ay and while the tack be reduced. It was replied, That a tack being but a personal right, unless it were instructed that the tacksman's right flowed from a person infeft, it could never be sustained, either in an action of removing, or for mails and duties. The Lords finding difficulties in this case, did ordain both parties to look out and produce such practicks whereupon they did found; and accordingly, there was produced one for the pursuer, of Hope's, in anno 1616, betwixt Drumkilbo and one Steven Biggingally, (See Removing.) where a tack was not found sufficient to remove a tenant, unless it was instructed his author was infeft. The Lords having considered these practicks as not meeting directly with the case in question, they did determine by their interlocutor, that a tack clad with seven year's possession without any interruption, was a sufficient title to defend in an action for mails and duties, ay and while it were reduced, and so assoilzied the defender in this possessory judgment; but withall, declared the tenants liable for all mails and duties resting in their hands unpaid to the tacksman, and in time coming while the tack be reduced.
