Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION. reported by JAMES BURNETT, LORD MONBODDO.

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Date: 26 January 1754

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[Kaimes, No. 63.]

An apparent heir, in the right of a tack granted to his predecessor, pursues a removing: the defence was an assignation granted by the defunct, upon which the assignee was then in possession, and had been so for several years before the defunct's death.

To which it was answered,—That the assignation was false and forged, and the pursuer proponed in probation; and this gave rise to the question, Whether an apparent heir, in the right of a tack whereof the defunct was not in possession at his death, could propone in probation of any right to that tack without being served heir? And that again depended upon another question, Whether the right of a tack, whereof the defunct died not in possession, vested in the heir without a service, so that he could pursue a removing. And the Lords found that it did, because it is a rule of our law that a tack goes to heirs without service; nor hath the law made any distinction whether the defunct was in possession at the time of his death or no; and it would be very extraordinary if the transmission to the heir depended upon the accident of the defunct's being in possession or no, when he died; so that if he should be turned out of possession by any act of violence before his death, his heirs would have had no right to the tack without service.

Dissent. Elchies, Kilkerran, Kaimes.