Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 REAL AND PERSONAL - TACK.
Subject_3 Whether a tack of services prestable by tenants, when clothed with possession, is an effectual right against singular successors in the lands.

Hugh Gordon
v.
James, Lord Forbes, &c

Date: 16 November 1774

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[Fac. Col. VI. 362; Dictionary, p. 15,221.]

Auchinleck. A man is proprietor of an estate and of a mill: he sets a tack and thirles all the tenants: Could he afterwards sell the lands to one man, and the mill to another, so as to defeat the servitude of thirlage, notwithstanding the written tack? Or, Will not the singular successor in the lands be still thirled?

Monboddo. This is a kind of servitude resembling that mentioned by Lord Auchinleck. It is indeed an improper servitude, as consisting in agendo: the purchaser would be liable in the one case, why not in the other? The purchaser acquired with the burden.

President. Is the purchaser bound to submit to such a servitude for ever? I distinguish between a real servitude and a personal servitude. Here is a constitution of a servitude by a mere personal tack for a certain endurance; How can this last after the endurance limited, or how can the personal paction be renewed?

Gardenston. The purchaser cannot be bound to make good services of this nature: before the excellent statute for the security of tenants, purchasers were not bound by tacks. Try this case by the statute: The estate is sold in lots,—every purchaser is bound to make good the tacks on the lot purchased, but he is not bound as to a lot he has not purchased. Here, Grant of Rothmaise, the purchaser of the mains, is liable, but no other purchaser. A servitude is a perpetual burden. Here there is no servitude, but only a service or personal obligation.

Coalston. This question may be new, but it depends on principles that are not new. A purchaser can only be bound by real burdens, or by tacks which are equivalent to real burdens. A purchaser cannot be free from known ordinary servitudes: he is not bound to perform personal obligations like this.

Justice-Clerk. There are no termini habiles for a servitude here. A man having a mill with multures may dispose of the mill to one man, and of the lands to another, and the multure will remain a burden; for a servitude of that nature has a causa perpetua. Lady Forbes is liable: she may have recourse against Grant of Rothmaise, the purchaser, but this is nothing to the purchaser of the other lots. Where is this claim of the pursuer to end? If it is good now, it must be good for ever.

On the 16th November 1774, “The Lords sustained the defence.”

Act. R. Blair. Alt. P. Murray. Reporter, Justice-Clerk.

Diss. Auchinleck. [Monboddo came over to the interlocutor.]