A tack of teinds held to have the benefit of a possessory judgment, as well as an infeftment, being a real right.
Click here to view a pdf copy of this documet : PDF Copy
The prioress of the nunnery of Haddington having set a tack of the teinds of the lands of Garvald and Nunraw to Patrick Hepburn, for sundry liferents and nineteen years, the right of this tack is assigned by Patrick Hepburn of Nunraw to John Hepburn, bailie of Swinton; and he pursuing for these teinds, compearance is made for George Robertson, who had adjudged the tack from Nunraw for his debt, and craved preference, as being seven years in possession by virtue of his adjudication, and so had the benefit of a possessory judgment.
Alleged, Whatever teinds constituted by infeftment may plead, yet tacks can never be the foundation to afford the benefit of a possessory judgment, that being only a location, and a servitude on other men's lands; and Stair seems to be of this opinion, book 4. tit. 17. Answered, The same reason and analogy of law that gives this privilege to infeftments, takes place in tacks, which by act 17th Parl, 1449, are declared real rights; and it is as fit to punish the heritor's negligence in the one case as the other, and to call the authors in a reduction ere my right be taken away; and the current of decisions run so; 1st December 1676, Home contra Scot, No 37. 10641.; 13th July 1636, the Bishop of Edinburgh contra Brown, No 34. 10646; and 23d January 1678, the Duke of Lauderdale against the, Earl of Tweedale, No 31. 6427, where tacks of teinds clad with seven years possession, were found a habile subject of a possessory judgment. The Lords were generally clear, that a tack of teinds could afford a possessory judgment as well as an infeftment, it being a real right, complete in suo genere; but superseded to decide it, in regard two practices were alleged to have found the contrary lately, viz. betwixt Sir William Bruce and the Laird of Arnot, (voce Teinds), and the Earl of Galloway and Macguffock of Ruske, Ibidem; and though it was answered that was only in the case betwixt the titular and the heritor, yet the Lords, before answer, ordained them to be produced, that they might be as uniform in their decisions as possible; but otherwise, there seemed to be no great difficulty in the question.
