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Arbuthnot, proprietor of the lands of Finart, in a tack granted to Frasers, inserted the following clause: “In case the said Frasers shall think proper to inclose any of the grounds, with sufficient dikes, they shall, at their removal, on leaving them sufficient, be paid a comprised price for the same, not exceeding a year's rent.” The estate being brought to judicial sale, and purchased by Sir James Colquhoun, Frasers brought an action, some years before the expiry of the tack, against the representatives of Arbuthnot, for payment of a year's rent, to be laid out by them in building dikes. The Lords assoilzied in hoc statu, reserving action for the value of the dikes, at the expiry of the tack, against the defender or his representatives, in case the same should not be allowed by Sir James Colquhoun, or the proprietor of the lands for the time. On the expiry of the tack, Frasers insisted in their claim against the representative of Arbuthnot, who called Sir James Colquhoun in an action of relief against Frasers’ demand. The Lord Ordinary found the representative of Arbuthnot liable in the comprised value of the dikes; but, in respect there is no obligation in the tack to build the dikes, and that the obligation to pay depended on an uncertain event, and that there was no mention therein of assignees, assoilzied Sir James Colquhoun. The Lords, however, altered this interlocutor, and held the clause effectual against a singular successor, finding Sir James Colquhoun liable in payment.
Fol. Dic. v. 4. p. 327. Fac. Coll.
*** This case is No. 103. p. 10424. voce Personal and Transmissible.
