The Lords found, that the law of death-bed extended to tacks; and, at the instance of the heir, reduced a tack of 38 years endurance, granted for an underrent, by a father on death-bed to a younger son.
Click here to view a pdf copy of this documet : PDF Copy
John Bogle was proprietor of the two merk lands of Hutcheson; which, in in his contract of marriage, he provided to himself, and the heirs of the marriage; whom failing, to his own heirs whatsoever. Of that marriage he had three sons; William, Thomas, and David.
Upon the marriage of William the eldest son, John the father disponed to him the one half, pro indiviso, of the foresaid tenement, The father and son afterwards possessed each a half of the lands, in a kind of run-rig, for many years, till William let his half to John Reid; and soon after died, leaving a son, John, and several other children.
When old John was in the 74th year of his age, and after contracting the disease of which he died, a tack was executed between him and his youngest son David; whereby he let, for the space of 38 years, the half of the lands which had remained in his natural possession, to David, and the heirs of his body; whom failing, to his other son Thomas, and his heirs and assignees; reserving to himself and his wife the liferent of the dwelling-house and yard. On the other part, David and Thomas were taken bound to pay to their father and his heirs, L. 100 Scots of yearly rent, together with the public burdens effeiring to the half of the lands of Hutcheson.
John, the granter of the tack, died within fourteen days after its date; and was succeeded in the property of the said half of the lands contained in the tack, by John his grandson, then a minor; who, upon his coming of age, brought a reduction against his uncle David, of the said tack, on the head of death-bed; and the circumstances of the granter at the time were clearly proved as above mentioned.
Pleaded by the defender; That it is only alienations of heritable subjects which are reducible ex capite lecti, and where the heir can qualify lesion from such deeds; whereas tacks, such as this, being onerous, and acts of ordinary administration, may be lawfully and effectually executed at any time of the granter's life, while he retains a sound judgment.
Answered for the pursuer; The law of deathbed was introduced to preserve the succession to the right heirs; and to this day takes place in the smallest as well as the greatest heritage. It strikes against not only direct alienations, but every device or measure calculated for creating an incumbrance on the heritage prejudicial to the heir. It is admitted, that the proprietor of an estate must, for public utility, retain the administration of it usque ad supremum vitæ halitum; but this tack was not a necessary or common act of administration, but a device to create a burden on the heir in favour of the granter's younger children. For, 1mo, It is granted for a rent below the true value of the ground. 2do, It is of an uncommon endurance, 3tio, It comprehends the mansion-house and yard of this ancient though inconsiderable family. 4to, By the intermixed possession of the lands, the heir cannot let or sell his remaining half to advantage, while the other half is under this lease. And, 5to, The substitution of one son after another is uncommon, and carries the appearance of a deed of provision by the father for the benefit of his two younger sons. The reduction of such a tack on the head of deathbed is therefore not an extension of that law, but agreeable to the reason and intendment of it, and to the analogy of many decisions; particularly, December 1733, Chrystisons contra Kerr, No 49. p. 3226; and 15th November 1757, Children of Hugh Campbell, No 54. p. 3232.
Replied for the defender, 1mo, The tack is granted for an adequate rent, as it is equal to what Reid paid for the other half of the lands, or very little short of it. 2do, Experience hath proved the inconveniency, both to master and tenant, of limiting tacks to a short period of time; and the utmost length the objection to this tack's endurance could go, would be to restrict it to such a shorter period as might be thought proper. 3tio, There is properly no mansion-house on either half of the lands, but only an onstead for each farm; and the pursuer may, if he pleases, have his choice of the two. 4to, The two halves of the lands have been always possessed as separate farms: so the inconveniency is not greater than formerly; and could not be remedied by this reduction, as both lie run-rig with other grounds. And 5to, The substitution of Thomas, the granter's other son, cannot affect this tack, more than if it had been granted in such terms to perfect strangers. Nor does the decision, Chrystisons contra Kerr, which is a single one, apply to this case; as there the tack was given on deathbed of the whole of the granter's estate for three nineteen years, which was considered as a species of alienation.
‘The Lords reduced the tack; and decerned.’
Act. Miller.Alt. Jo. Dalrymple, Lockhart.Clerk, Pringle.
Fol. Dic. v. 3. p. 171. Fac. Col. No 187. p. 334.
