Legal Irritancy upon assigning or subsetting. - Rental Rights. - Whether Marriage be such an Assignation as to infer Irritancy?
Sir John Home of Manderston v. Margaret Taylor, and her Husband
1734.
January. Case No. No 31.
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The question occurred, whether a tack set to a woman, secluding assignees, is void upon her marriage? For the affirmative, the authority of Craig was given, L. 2. Dieg. 10. § 6.; Stair, L. 2. T. 9. § 26. On the other hand, it was pleaded, That here there is no assignation, because a tack secluding assignees falls not under the jus mariti. 2do, Esto there were, the assignation could only be annulled, but not the tack. See Stair, eodem titulo, § 16, in fine. Answered, The administration of the tack, as well as the profits, must in all events be in the husband, which is virtually superinducing another tenant; and this is a virtual assignation that cannot be reduced; and therefore nothing is left but to reduce the tack itself. And this is the very reason given by Lord Stair, Sect. 26. above cited. The Lords reduced the tack. See Appendix.
