Scottish Court of Session Decisions

Subject_1 HEIR APPARENT.
Subject_2 SECT. IV.

Effect of the Apparent Heir's interference, and extent of his Interest in the Estate.

John Lowdon, and other Creditors of Edward Murray of Drumstenchill,
v.
Gideon Murray, Tenant in Drumstenchill

Date: 13 June 1752
Case No. No 29.

A tack granted by an apparent heir, though three years in possession, was found not effectual against an adjudger.

Click here to view a pdf copy of this documet : PDF Copy

Alexander Murray, being in possession of the lands of Drumstenchill, as apparent heir to his father Edward, set in tack a part of these lands to Gideon Murray for the space of 19 years, at the same rent they had formerly paid.

The creditors of the said Edward Murray having adjudged the said lands from Alexander, as charged to enter heir to his father John Lowdon, one of the creditors brought a sale of the estate, and together therewith a reduction and improbation, as is usual, in order to force production of all rights affecting the estate.

The summons of reduction and improbation was executed against Gideon Murray the tenant, who appeared and produced his tack; against which the creditors objected, that it was null, being granted by an apparent heir. The Lord Ordinary, 2d July 1751, ‘sustained the reason of reduction of the tack, as flowing a non babente potestatem.‘

Long after the days of reclaiming were over, Gideon Murray applied to the Ordinary, and afterwards by petition to the whole Lords, setting forth, that the proceedings in this process against him were irregular; for he was properly no party in the reduction, nor was the tack called for in the summons, or any ground of reduction thereof libelled, the process being intended only to force creditors to produce their rights and diligences, that the ranking might go on: The summons was by mistake executed against him, and he ignorantly produced his tack; but as the certification would not have struck against the tack had he not produced it, so neither could it be reduced in this process when produced. And this being the case, he insisted that he was not forclosed by the lapse of the reclaiming days, because the whole proceedings were void and null, and therefore the interlocutor ought to be recalled.

2dly, Although there were a proper process of reduction brought, yet John Lowdon and the other creditors could not insist therein, because they are not infeft; and creditors not infeft cannot challenge a tacksman whose right is real by possession.

3dly, The tack is not null, as flowing a non habente; for it was set by an apparent heir, who, as he was entitled to continue his predecessor's possession, of course was entitled to substitute another person in his own place, by granting him a tack of the lands; for this, amongst other reasons, that the lands might not lie waste. At least, seeing the apparent heir was more than three years in possession, this tack must be valid by act 24th, Parl. 1695.

Answered for John Lowdon and the other creditors; That, in a process of this nature, creditors are entitled to object to any interest founded on in competition with them, and to remove all the incumbrances that stand in the way of their payment, as the tack in question does; for though the lands may be set for the old rent, yet as the tack is for the space of 19 years, it must occasion the lands to sell at a lower price. And supposing that the certification would not have struck against the tack if not produced, yet seeing the tacksman compeared with his tack, and founded upon it, it surely was competent for the creditors to object to the validity of the tack; his own acting subjected himself to a trial of his title; and as he, no doubt, expected to avail himself of the judgment had it been in his favour, so of course it follows, that he cannot now complain of the incompetency of the process when judgment has gone against him.

With respect to the objection to the pursuers title to reduce, because they are not infeft,

Answered, That as the tacksman provocavit ad judicium by insisting on a preference in virtue of his tack, and thereby gave rise to their objecting, he must stand or fall by the judgment given.

And as to the power of an apparent heir to set tacks, it is tritissimi juris, that he has no such power, having no right in himself further than to continue his predecessor's possession; and though a tack, set by an apparent heir three years in possession, might be good against a subsequent heir upon the act 1695, yet it cannot avail the tacksman in a question with creditors, or with a singular successor.

But it is needless to insist further on these points; for, as the days for reclaiming were run long before the defender applied against the Lord Ordinary's interlocutor, the Court cannot now consider the pursuer's title, nor enter into the merits of the reasons of reduction.

‘The Lords were of opinion, that, had the tack not been produced, the certification in the reduction and improbation would not have struck against it; but the Lords, in regard of the production of the tack, found the tack void and null; and therefore adhered to the Lord Ordinary's interlocutor.’

Act. Ro. Pringle. Alt. Jo. Dalrymple. Clerk, Kirkpatrick. Fol. Dic. v. 3. p. 258. Fac. Col. No 14. p. 28. *** Kilkerran reports the same case:

The Creditors of Murray of Drumstinchal having, upon the title of their adjudications, pursued a sale of the estate, they, as usual, insisted in a concomitant process of reduction and improbation; in which Gideon Murray, a tenant of a part of the said estate, having produced the tack by which he possessed, it was thereto objected, that it was granted by an apparent heir, and therefore void; which the Ordinary ‘ sustained, and reduced the tack.’

Against this interlocutor, the tenant reclaimed on this ground, that there was no proper process in Court, in which this tack could be reduced, as tenants are not obliged to produce their tacks in such processes of improbation; and it ought not to make any difference, that, in this case, the tenant had ignorantly produced his tack, which he was not obliged to have produced.

And so far the Lords were of opinion, that he had no occasion to produce his tack; but in respect he had produced it, ‘adhered:’ And so the interlocutor was expressed, that a general improbation attending a sale might not be thought to extend to tacks.

The tenant again reclaimed, on the following grounds, 1mo, That as his tack, clothed with possession, was a real right, it could not be reduced at the instance of the pursuers of the sale, who were only adjudgers not infeft. 2do, That a tack granted by an apparent heir, who had been three years in possession, which was the present case, being an onerous deed, was effectual upon the act 1695.

The Lords ‘refused the bill without answers.’ It is triti juris that an adjudication without infeftment, when used as the title in a ranking and sale, will be sustained even to reduce an infeftment. And as to the argument from the act 1695, 1st, Though a tack by an apparent heir, three years in possession, should be good against another heir passing by, it would not follow that it would be good against an adjudger; there is no consequence from the one to the other, as in the one case there is an act of Parliament, and not in the other, 2dly, It was even thought, that a tack set by an apparent heir would not be good against a subsequent heir passing by, as that heir is only made liable to the extent of the value of the subject, which shows that it concerned only debita, or deeds that were resolvable into debita, and therefore there was no argument from the case, e. g. of an heritable bond to a tack.

Kilkerran, (Heir Apparent.) No 2. p. 238.