Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION. reported by Alexander Tait, Clerk Of Session, One Of The Reporters For The Faculty.

Campbell of Blythswood
v.
Love

1772. June.

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By the tailyie of the estate of Blythswood, it was provided, That the heirs of entail should not set tacks for above the space of nineteen years.

A tack having been entered into of part of the tailyied estate betwixt James Campbell of Blythswood and John Love, for nineteen years from Candlemas 1751, it expired at Candlemas 1770. But, upon the 6th March 1766, Blythswood set another tack of the same lands to Love, but for a higher rent, for nineteen years, from and after Candlemas 1770; but Blythswood having died in November 1767, his heir, in March 1770, raised an action of removing against Love, libelling upon the Act of Sederunt 1756, and concluding that he should remove at Candlemas 1771 from the arable lands, and at Whitsunday 1771 from the houses and grass. And it was pleaded for the heir, that, as the first tack expired at Candlemas 1770, and Blythswood having died before commencement of the second tack, Love therefore fell to be removed in terms of the libel.

“The Sheriff of Lanark, 24th July 1770, found that the defender, in virtue of the last tack, dated 6th March 1766, had right to possess the lands libelled, for nineteen years from the date of the tack; and assoilyied him from the process of removing.”

Both parties complained by mutual advocations. The tenant said he had got too little; the master said he had got too much. But the Lords, “on report of Lord Coalston, advocated the cause, and found that the defender, in virtue of the tack dated 6th March 1766, had right to possess the lands libelled, for nineteen years from the date of the tack.”

In arguing this cause it seemed to be held for law, That a tack, granted by the proprietor of an entailed estate, is not good against a subsequent heir of entail, unless the tack was clothed with possession in the lifetime of the granter; and that, however it might found the tacksman in an action of damages against the granter and his general representatives, it cannot be set up against a subsequent heir of entail. But then, in the present case, it was said, that Love, in virtue of his second tack, had truly obtained possession. For, as the heir knew of this second tack, it was incumbent upon him to have warned Love to have removed at Candlemas 1770, and not at Candlemas 1771, by which time the first year of the new tack was expired; and his not doing so was a tacit homologation of the tack, and a consent that Love should enter into possession upon it.

But the Lords took a middle course; for, as it was clear that Blythswood and the tenant, by the destroying the old tack, could have entered into a new tack for nineteen years, commencing from Candlemas 1770; therefore they thought that, though the new tack could not be supported as a tack of nineteen years from Candlemas 1770, yet it might be from March 1766. And they pronouned decreet accordingly. And it was said that this was similar to a verbal legacy, which will be sustained for £100 Scots, but for no higher sum.