Retention of rents allowed by the landlord to his tenant, in consequence of cautionery obligations, and prorogation of his tack for the same cause, whether good against crediditors?
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Lord Cranston, in April 1735, granted a lease to Thomas Scot, to continue for twenty-one years, from Whitsunday 1734. In 1750, Scot became cautioner for Lord Cranston in a debt of £.527, which he was soon after obliged to pay; and for his relief, Lord Cranston, in August 1752, gave him a prorogation of his tack for three periods of twenty-one years, to commence at Whitsunday 1755, when the former lease expired, at the same rent as in his first lease; with a power to retain, for his payment, the fine or grassum stipulated in the new tack; and also to retain the surplus rent of his farm from the year 1751, over the interest he was previously bound to pay out of it to certain heritable creditors.
In the year 1754, the estate of Lord Cranston was sequestrated. The creditors of Lord Cranston, by infeftments and adjudications posterior in date, contended, That as possession had not commenced upon the prorogation of Thomas Scot's tack, it had not become real before the sequestration; and was therefore ineffectual against them. And 2dly, That Scot could not even be entitled to retain the surplus rents from 1751 to the time of the sequestration, because their adjudications and infeftments, though posterior to the date of his new tack, became preferable to his assignment from their dates. And further, the sequestration was preferable to such assignment, and must attach all the bygone rents in the tenant's hands.
Answered, Lord Cranston, at the time of granting the prorogation, was in full possession of his estate; the rent was not thereby diminished; and this reasonable act of administration could not be rendered ineffectual by the posterior sequestration; especially as Scot was to be considered as a tacksman in the immediate possession, agreeable to the decision, Richard against Lindsay, (supra) though the term of entry upon the prorogation of his tack was not commenced.—2do, The surplus rents from 1751 to the date of the sequestration, were to be considered as bona fide percepti, and already applied for payment of the cautionry debt.
The Lords found, 28th February, 1755, That the bygone rents preceding the sequestration did not fall under the factory; but that the rents in time coming, since the sequestration, did fall under it.
And having afterwards heard counsel upon the validity of the tack, Found, That the tack was not good against creditors, in respect the tacksman did not attain the possession of the lands set, by virtue of the tack quarrelled, prior to the dates of the infeftments in favour of the real creditors, or prior to the adjudications obtained at the instance of the personal creditors; and that the said creditors themselves did first attain the possession by their factor, after a judicial sequestration of the estate; and therefore sustained the reasons of reduction, in so far as concerned the interest of the said creditors; reserving action to the said Thomas Scot against the Lord Cranston upon the personal obligement as accords.”
For the creditors, Wallace, senior, Lockhart.Alt. Johnstone, Ferguson.Clerk, Forbes.
Fol. Dic. v. 4. p. 324. Fac. Coll. No. 3. p. 4.
