[1766] Hailes 174
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 TACK.
Subject_3 Tenant's Oath in a judicial rental cannot supply the want of a written tack, so as to support his possession under a verbal lease for nineteen years.
Date: Patrick Leith Suspender,
v.
The Factor on Leith-Hall, Charger, Captain James Stuart
5 December 1766 Click here to view a pdf copy of this documet : PDF Copy
[Dictionary, 15, 178.]
Coalston. The dislike I have at an heir's pleading upon a locus pœnitentiæ may mislead me in my judgment. The charger agrees that there was a verbal bargain for 19 years, and that this bargain was minuted,—why put the minute into the hands of Wardhouse if it was not signed? Besides, here there was rei inlerventus. The law gives locus pœnitentiæ when the bargain is nudis fnibus contractus; not where there is ret interventus,—the case mentioned by Spotiswoode and Auchinleck in 1629. According to the charger's argument, a tenant may be suffered to possess in years of famine, and may be removed as soon as the rent may be easily obtained upon a profitable possession.
Justice-Clerk. Here there is no evidence of a written agreement. If there had been a rental sworn to upon a lis contestata, it would have been a judicial
rental; but here there is not a judicial rental, only an inquiry into the rent. If we sustain this, we set tacks of the gentleman's whole estate. The rental ascertains nothing more but a verbal agreement:—this the heirs may safely admit. Alemore. The rental, joined with the other evidence, is sufficient to secure the tenant. A judicial compromise is binding.
Auchinleck. Here there have been communings and a jotting, but no tack or minute; for, if that had been the case, the witnesses would have subscribed. The only difficulty is as to the second point; of the rental. If one refers the rent and the title to possess to the oath of the tenant, this is sufficient. The referring the rental to the oaths of the tenant must have been in order to bind them down to that rental. The tenants could not afterwards have denied the tack or its terms, for the answer by the master would have been juratum est. If the tenant was bound, how could the master be free?
Barjarg. The oath emitted in Leitli-hall's presence is not sufficient; for it does not mention a written agreement.
Kennet. The interlocutor, allowing a diligence for proving, related singly to havers, so that the proof taken by witnesses was irregular.
Gardenston. Leith-hall verifies and approbates what the tenant says, by his conduct during the whole of his life; and, in terms of the supposed agreement, he orders a tack to be made out.
Kaimes. There is no evidence that the minute was signed by the parties in order to be obligatory: but the judicial rental was taken in presence of Leith-hall, was received by him, and according to it rent was paid. A verbal agreement about a sale of lands does not produce action about a tack, only for the possession of one year: but, if a man is put into possession and pays rent &c., a personal objection lies against the landlord, because it is unjust in him to except. The landlord's acquiescence proves that the oath was true. Writing is necessary to make a tack, that is to say, to make it good against a purcliaser. Were the tenant insisting for performance, the verbal agreement would go no further than for a year; but, here, how can the master go against his own deed? The verbal contract cannot be proved by witnesses, but here the agreement is proved by the rental. A personal exception would have lain against Leith-hall, and consequently lies against his representatives.
Pitfour. Here is presumptive evidence of a writing, but this will not prove the tenor; because, in an action for proving the tenor, the waiting must be proved formal. There is, however, here a rei interventus, and an approbation on the part of the master. Were Leith-hall alive, he would be precluded from the action execptione doli. In the case of Baron against Duncan, 6th March 1752, an informal writing was found homologated; but then there is a difference here that there is no writing. There is, however, an oath put to the tenant by the master, and this judicial document may be taken as an informal writing.
President. The law of Scotland inclines for writing: a verbal agreement for a tack is not good beyond a year. The tenant contracting may insist for a tack with the legal solemnities—otherwise confusion would be introduced. The decision 1629 has been overruled. If the tenant possesses in dear years
without a tack, it is his own fault. The case of Baron was upon other principles: there, there was writing,—informal but homologated; here, there is no evidence of writing,—no proof of rei interventus. The master is not bound by the judicial rental,—the whole resolves into a verbal agreement, and there is still locus pœnitentiæ. On the 5th August 1766, the Lords sustained the reasons of suspension. On the 25th November 1766, they found the letters orderly proceeded. On the 5th December 1766, they refused a petition from the tenant and adhered [to Lord Kennet's interlocutor,] but remitted to the Ordinary to hear parties, as to the claim of meliorations made by the tenant.
For the Charger, C. Gordon. Alt. R. Blair.
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