What Title requisite in the Positive Prescription.
Subject_3 SECT. V.
Title requisite in the Prescription of Right to Teinds and Rights granted by Ecclesiastics.
The Earl, of Leven v. the Heritors of the Parishes of Kennoway and Markinch
Date: 27 June 1696 Case No. No 98.
Found also in conformity with the case of Prestonhaugh, supra.
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In a spuilzie of teinds, pursued by the Earl of Leven against the Heritors of the parishes of Kennoway and Markinch, their defence was upon a liferent tack, set to Sir George Douglas, and two heirs' lifetimes, and 19 years thereafter, from whom they had sub-tacks. Alleged, The sub-tacks were null, because tacks of their own nature are strictissimi juris, and not mentioning assignees, this tack was not assignable. 2do, It is only provided to heirs actually entered and served, which they were not. Answered, Though short tacks are not assignable, yet liferent ones have ever been sustained to be transmitted by assignation, and to be apprisable, as was founds, Home contra Craw, No 53. p. 10371,; Duff contra Fouler, No 95. p. 10282.; 16th November 1680, Drummond contra Dalrymple, voce Tack. To the 2d, Esto they were not served heirs, yet, being clad with possession, they were bona fide possessors for all bygones, by virtue of their sub-tacks: But, 3tio, Whatever nullities could be obtruded against their sub-tacks, the same are all now supplied by prescription, they having bruiked the teinds these 40 years, in right of these subtacks, without interruption. The Lords sustained the answer, and found these sub-tacks sufficient to defend them during the years of the tack and prorogation yet to run. See Stair's Instit, B. 2. T. 12. and 7th July 1677, Minister of Prestonhaugh, supra.
Fol. Dic v. 2. p. 104. Fountainhall, v. 1. p. 724.
