Subject_1 LOCUS POENITENTIAE. Subject_2 SECT. III.
What writing sufficient to bar Locus Pćnitentić. - Ubi res not est integra. - Rei interventus. - Oath. - An informal writing does not bar Locus Pćnitentić. - Promise to ratify an informal writing bars Locus Pćnitentić.
Home v. Home of Polwart
1684.
March. Case No. No 31.
A tack of tithes, though subscribed by only one of the parties, was sustained, the other party having entered to possession.
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By a minute of contract betwixt the Earl of Home, and Sir Patrick Home of Polwart, the Earl having granted power to Polwart to collect the teinds of certain lands within the parochin of Greenlaw, Eccles, and Edrum, for which Polwart was obliged to pay to the Earl 900 merks yearly, which being assigned to Jean Home, and she having pursued Polwart for payment, it was alleged for the defender, That the minute was null, and could not oblige him, seeing it was not subscribed by him, but only by the Earl; as also, that he did possess the teinds of Greenlaw by virtue of a tack from the parson of Greenlaw, which was preferable, and would have excluded any right he had from the Earl to these teinds; so that the defender was necessitated, for his own security, to take a tack from the parson. Answered, That albeit the minute of contract was not subscribed by the defender, yet seeing he possest by virtue of that minute, and deduced a valuation therefrom before the commission of the kirk, and made payment of the tack duty for some years, he ought still to be liable for the tack duty; and he having acknowledged the Earl's right, by entering into possession by virtue of that minute, he could not invert his possession, and ascribe the same to any supervenient right that he acquired from the parson of Greenlaw, in prejudice of the Earl, the pursuer's cedent, unless the teinds had been evicted from him by the parson by legal diligence, and the Earl's right reduced.—The Lords sustained the minute, albeit not subscribed by the defender; and found, that his making use of the minute, and his entering into possession by virtue of the same, it supplied the want of his subscription; and that he could not invert his possession in prejudice of the Earl by any supervenient tack that he had acquired from the Parson of Greenlaw to these lands.
Fol. Dic. v. 1. p. 564. Sir P. Home, MS. v. 1. No 592.
