Competition betwixt Tacks, and betwixt Tacks and other Rights.
Johnston v. Cullen
Date: 24 February 1676 Case No. No. 102.
Found in conformity with Hamilton v.Tenants, No. 100. p. 15230.
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A tack being granted by a husband, to another person, to the behoof his wife, to begin at the first term after the husband's decease, was not sustained against a singular successor; because the said tack was but a personal right, not being cald with possession, and the entry was conferred in tempus indebitum, to begin after the husband was denuded.
Fol. Dic. v. 2. p. 420. Dirleton, No. 346. p. 165.*** Stair reports this case:
Isabel Cullen pursues the tenants of some tenements in Aberdeen for mails and duties. Her title is a tack granted by her husband to a confident person, to her behoof, as appears by the tenor of the tack, being “to endure during her life;” and, by an assignation granted by the tacksman to her, the entry of which tack is after her husband's death. Compearance is made for the Town of Aberdeen, who have a right to a wadset granted by the husband after the tack; who alleged, that the tack, having its entry after the husband's death, could have no effect against their public infeftment, albeit posterior thereto, because it is possession only that makes a tack effectual against singular successors. It was answered, That the pursuer being provided to a wadset-right by her contract of marriage, and that being redeemed, she had only this tack in place of it; and as base infeftments to wives, though they bear to be in life-rent after their husbands’ death, and so can have no possession during their lives, more than this tack, yet they are always sustained in favours of wives on their contract of marriage, or provisions in place thereof. It was replied, That infeftments have symbolical possession, and are valid rights, though base, albeit public infeftments are preferred to them when they are private, retenta possessione; but tacks are in themselves only personal, till they attain possession; but if the tack had been to the wife or her trustee, to take present effect, the husband's possession might have validated the same, and so have enjoyed the benefit of the same, jure mariti; but if such tacks as these were foufnd valid against singular successors, being latent betwixt conjunct persons, they could never be secured.
The Lords preferred the infeftment to this tack, albeit it was alleged that, by the custom of Aberdeen, infeftment could not be granted to wives, but to men who are burgesses in the burgh.
