Competition betwixt Tacks, and betwixt Tacks and other Rights.
Walter Carmichael v. Lockhart of Cleghorn
Date: 16 February 1715 Case No. No. 103.
Effect of an obligation to renew a lease.
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In an action for mails and duties against the tenants of Wester-millrig, at the instance of Walter Carmichael, he produces, as his title, a tack from Sandilands of Boall, proprietor, in favour of Carmichael's predecessors, in anno 1618, which bears to be in implement of another tack in anno 1597, and acknowledges the receipts of by-gones, and sets the lands for 19 years for an elusory duty containing also an obligement to receive the said Carmichael and his foresaids kindly tenants in the said lands, after the ish of that tack, for £.40 of grassum, at the beginning of each 19 years tack, besides the yearly duty, and to reiterate and renew, as often as need beis, &c. upon which there is a decreet of registration in anno 1937, and a decreet of suspension in anno 1638, running in the terms of the tack.
On the other hand, there is produced for Lockhart of Cleghorn, a charter of the said lands, granted by Carmichael of Bonington superior, with a sasine, both proceeding upon a disposition to Cleghorn from his own lady and her sisters, as heirs to Winram of Wiston their father, who had right by an expired comprising against Sandilands.
Alledged for Cleghorn, the heritor, 1mo. That the tack was null as wanting an ish; 2do, That though the obligment to renew might have been good against Sandilands and his heirs, yet it could not, militate against him a singular successor.
Answered for the tacksmen, 1mo.That there was an ish at the expiration of ilk 19 years; 2do. That as singular successors are disenabled by act of Parliament to break tacks set to tenants, so here there seems to be no difference between a tack and an obligment to grant one, “nam pactum de assedatione facienda, et ipsa assedatio parificantur” providing they be both clad with possession. And it is as easy for a singular successor to inquire into the one as the other, since neither is registrated, and therefore equally presumed to be unknown: For this he quotes two decisions from Viscount of Stair, pag. 314. in fine, where this case has been determined, viz. March 20th 1629, Laird of Finmonth contra Weems,voce Virtual, and, another observed by Hope, viz. Crawfurd contra Minister of Faile, No. 25. p. 14737. voceSpuilzie.
Replied for Cleghorn, That such an obligation to renew, is not a tack; and if pleaded as such, it is null, as wanting an ish; for though it might be good for the first, 19 years, after expiring of the original tack, yet no longer: Nay the obligation, though perpetual, might indeed bind Boall and his heirs, but not a singular successor; otherwise such an obligation would be more favourable than a tack itself, which nevertheless cannot stand before a singular successor, if it want a determinate ish.
The Lords preferred the tacksman to the mails and duties for bygones, and, in time coming, until removing; reserving all defences in the removing, as accords.
For Lockhart, Archibald Hamilton.Alt. Muir.Clerk, Mackenzie.
Bruce, v. 1. No. 69. p. 84.
