A clause excluding assignees pleadable only by the landlord.
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The late John Marquis of Tweeddale (12th December, 1755,) let the lands of Sheriffside to David Hay, and his heirs, secluding assignees. In this farm, he was succeeded by his eldest son, John; who (26th December, 1799,) assigned the lease to James Hay, his natural son, failing heirs lawfully procreated of his own body. He died a few days afterwards, without other children. Nicholas Hay, the daughter of the original tacksman, and Andrew Wood, his great-grandchild, expede a service as heirs general to him, and raised a summons of reduction against James Hay, the assignee of the lease, in as much as assignees are expressly secluded, and as they, as heirs-at-law, are entitled to enter into possession.
The cause came before Lord Armadale, who (24th June, 1801,) found, “That the clause secluding assignees contained in the tack entered into between the now deceased John Marquis of Tweeddale and the also deceased David Hay, was a clause entirely in favour of the said deceased Marquis, the proprietor of the subjects contained in the tack; and as the heir and representative of the Marquis does not concur with the pursuers in the present action, finds, That the pursuers are not entitled to found on the clause.”
The Court were quite agreed, that it was jus tertii in the heirs of the tenant to challenge the assignation; that this right was altogether personal to the landlord; and refused the petition reclaiming against the Lord Ordinary’s judgment, without answers.
Lord Ordinary, Armadale.For the Petitioners, Baird.Agent, Ja. Marshall, W.S.Clerk, Home.
Fac. Coll. No. 91. p. 22.
