Scottish Court of Session Decisions

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

Factor upon the Sequestrated Estate of Kelhead

Date: 18 February 1766

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Sir John Douglas of Kelhead, after a ranking and sale of his estate was raised, set a tack to a tenant in possession, to endure for 15 years, and to commence at the expiration of the current tack, which was at the distance of four or five years. Two or three months after setting this tack, Sir John’s estate was sequestrated, and a factor appointed by the Court, who now pursues reduction of the above tack; and the Lords unanimously reduced it, (dissent. tantum Pitfour,) upon this ground, that it was not an ordinary act of administration, and therefore Sir John could not do it after a ranking and sale of the estate was raised. But I think the thing is otherwise clear upon the principles of law; for the new tack, till it was clothed with possession, was no more than a personal obligement, which could not be effectual either against a purchaser, or against creditors entering into possession. There might have been some more doubt, if the tenant had renounced his old tack and taken a new one for nineteen years; but I should have been of the same opinion even in that case: and there I think the principles the Lords went upon will very well apply to an extraordinary act of administration, which Sir John could not exercise while his creditors were in cursu diligentiæ, to get the estate sequestrated.