Scottish Court of Session Decisions

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

Tenants of Killilung
v.
-

Date: 22 July 1760

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An apparent heir, who had been three years in possession, set a tack for an adequate rent. After this, the creditors of the predecessor adjudged the estate, which was sequestrated and a factor appointed by the Lords, while a ranking and sale was carried on. The question was, Whether the creditors could reduce this tack of which the tenant had been in possession for several years? and whether the purchaser, at the judicial sale, might not, after he was infeft, remove this tenant? It was admitted, that, against the next heir passing by, the tack would be good upon the act 1695; but the Lords unanimously found that it was not good against the creditors, and that, with respect to them, the heir could do no deed to affect the estate; and that the Act of Parliament which makes tacks a real right supposes that they proceed from one who was in the right himself.

Lord Alemore said, that this Act 1695 was a correctory law, which only made the debts and deeds of the apparent heir effectual against the next heir but against nobody else.

Quæritur—What would have been the law if the apparent heir had sold the estate, or if his creditors had adjudged it?