Warning, in what Cases necessary. - How to be executed.
Hugh Earl of Marchmont v. John Fleeming
Date: 22 February 1743 Case No. No 82.
It is not necessary to warn a subtenant who possesses under a tackman, whose lease excludes assignees; nor to summon him to remove on six days.
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Anno 1725, the late Earl of Marchmont let a tack of several mills, &c. to James Rae, and his heirs, secluding assignees, for the space of seven years, and, in the 1733, he renewed the lease in the same terms. On the 22d of August 1741, Rae renounced this lease, upon which Lord Marchmont granted a new lease to John Hunter of this possession, to commence quoad the mills at the Lammas preceding, and quoad the lands at the Martinmas thereafter.
When Hunter came to take possession, John Fleeming opposed it, as having a subset from Rae of the mill &c. of which he had been in possession many years. Whereupon the Earl lodged a complaint against Fleeming before his baron-bailie who decerned him to remove from the mill against the 28th of the said month of August, and from the land at Martinmas thereafter. He suspended, and pleaded, That James Rae, the principal tacksman, could not renounce to his prejudice, especially betwixt terms, so as to expose him to be violently thrown out, who possessed the lands originally, by virtue of a written subtack, and continued therein by tacit relocation.
That the act 1555, anent warning of tenants, ordains, That in all time coming the warning of tenants, and others, to flit and remove from all lands, &c. shall be in manner as therein set furth, which comprehends subtenants to tacksmen, that have no power to set, which the suspender does not admit is the case here, as the tack only excludes assignees. And whether he is a tacksman or putative heritor who assumes that power, does not alter the case; the poor tenant is not presumed to look into the setter's right, but only his being possessor of the subjects set. It is true, that after a setter's right ceases, the maxim will take place resoluto jure dantis, &c. the right from him must give way and thereby the proper owner would have power to warn and remove a tenant, notwithstanding of a tack for years to run, from a person who had no right to set the same; but still there must be a regular warning used. Thus, in the case of a liferenter setting a tack for a number of years, and dying before the end of the term, the tack is at an end by her death, and yet the tenant cannot be summarily removed; and much less betwixt terms, as in this case. Further, the statute requires, that all summonses of removing be upon six days; but the suspender had not six hours, he being cited and decerned all in one day, which was great oppression; especially as he had possessed and paid rent to the tacksman for fifteen years, and so could not be deemed an intruder or violent possessor.
Answered for the charger, That tacks are strictissimi juris, and can neither be assigned nor subset, unless an express power is given for that effect, which proceeds on this principle, or foundation in the Roman law, That a creditor cannot substitute another creditor in his place without consent of the debtor, and so vice versa. In like manner, if I oblige myself to dispone my land to Mævius, I am not bound to assign to his assignee. It is true, a procuratory in rem suam, or an assignation, may be effectual with regard to obligations relative to money or fungibles, but cannot answer the purpose in the case of personal prestations, tacks, reversions, or such like.
This doctrine must hold a fortiori in the present case, where assignee are expressly excluded; under which, no doubt, must be comprehended by a sub-tack, who have a full right conveyed to them, as an assignee to the tack itself has: Nor do these different forms of conveying make any difference quoad the landlord, because in either case the principal tacksman remains bound; and both are equally against the nature of the contract, by which there is a delectus personarum; the tacksman is chosen, and is bound himself to possess, therefore cannot devolve his possession upon another. 2do, The privilege of warning is only bestowed on lawful possessors; it would be absurd to give it to a mula Fide possessor. No doubt ft, a tack, set by a person in possession qua proprietor will defend until warning, because the granter had the jus possidendi upon a colourable title; but surely a tack granted by one who never was in possession, nor ever had a colourable title, is not so privileged; and one who takes an assignation, or subset from him, cannot have a bona fides, but must know that he is stipulating a thing the granter cannot give him.
And With respect to the complaint, that the suspender ought to have had a formal summons of removing, it was answered, That he was no more entitled to that than to warning; nay, it was not a clear point but he might have been Removed via facti, as any other servant of the former tacksman might have been.
