Colquhoun Grant v. The Representatives of James Richardson
Date: 10 July 1788 Case No. No. 29.
A missive letter of tack sustained as effectual, tho' not holograph, the subscription not being denied, and possession having followed.
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An action of removing from a farm having been brought against the heirs of James Richardson, they produced, as his and their own title of possession, that of both having been held for several years, a missive letter, addressed to Richardson, and bearing the subscription of the landlord, which contained a promise to grant a nineteen years lease of the lands. With respect to the verity of the subscription, the pursuer, who was trustee for the heirs of the alleged granter, refused either to acknowledge or to deny it; and
Pleaded: Writing is essential to the constitution of every obligation concerning heritage. Such writing must be formal and probative, otherwise it has no legal effect. Not even an acknowledgment on oath, of the verity of the subscription to a writing not holograph, will there supply the want of the statutory requisites. That this is now an established rule, appears from the decisions in the cases of Mackenzie contra Park, No.47. p. 8449. voce Locus Pœnitentiæ, and of Stewart contra Besset, in 1765,(see Appendix); notwithstanding that formerly the point may have been differently understood.
Answered : Though to the transmission of landed property certain forms and solemnities are required, yet by less formal deeds a person may become effectually obliged to execute the proper legal conveyances for that purpose; Lord Kilkerran contra Paterson, No. 43. p. 8440. voce Locus Pœnitentiæ Neil contra Andrew, No. 84. p. 10406. voce Personal and Transmissible. It cannot, then, be doubted, that an obligation to grant a tack may be created in that manner. But pactum de assedatione facienda idem est ac ipsa assedatio;, Craig Lib. 2. Dieg. 10. § 1o.; and, when clothed with possession, such a pactum cannot be objected to on account of any statutory informality; Crawford contra Wight, 16th January, 1739, voce Writ; 20th December, 1746, Foggo contra Milligan, Ibidem; 6th March, 1753, Barron contra Duncan, No. 25. p. 15177.
The Lords assoilzied the defenders.
Lord Ordinary, Stonefield.Act. Lord Advocate.Alt. Elphinston.Clerk, Orme.
Fol. Dic. v. 4. p. 322. Fac. Coll. No. 33. p. 53.
