Payment by a tacksman to the apparent heir who let him the land, made before intimation of a decree of preference in favour of a liferentrìx infeft, held to be bona fide; though the process commenced before letting the subject.
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Lady Margaret Macgill being infeft in liferent in the lands of Kerse, and a competition thereafter arising betwixt her and the creditors, she was at length preferred; but, during the dependence, the apparent heirs-portioners set a tack of the lands to Patrick Crawfurd to whom he made payment of the tack-duty, before intimation of the decreet of preference; and, in a process at Lady Margaret's instance against him for the same tack-duty, by virtue of the said decreet, he alleged bona fide payment, he having paid to the setters before any legal intimation of the decreet.
Answered for the pursuer: That, before setting of the tack, her action was commenced; and, being a real action, the decreet is to be drawn back to the action, or rather to the first term after her husband's decease, at which time her jointure fell due, by virtue of her infeftment, which effectually stated her the true and real creditor, whereas the setters were not yet infeft: And, by law, the tacksman was obliged to know the condition of those with whom he contracted, whose right had been rendered litigious before the setting of the tack; so that the depending process and the lady's infeftment, whereon it was founded, sufficiently interpelled every person concerned, as tenants, intromitters, &c.; and, if it were otherways, every intrant tenant, after a multiplepoinding raised, might pay the rent to the setter, and so disappoint the effect of the law. Nevertheless,
The Lords found the payments made by the defender to the setters of the tack, which were made prior to the intimation of the lady's decreet of preference to him, relevant to extinguish the tack-duties of those terms that fell due prior to the said intimation.
Act. Rigg.Alt. Hutchison.Clerk, Roberton.
Fol. Dic. v. 1. p. 112. Bruce, No 10. p. 14.
