Scottish Court of Session Decisions

Subject_1 TACK.
Subject_2 SECT. IV.

In what Cases good against Singular Successors?

Preston
v.
Tenants of Duddingston

Date: 7 March 1604
Case No. No 70.

Found, that tenants having tacks for terms to run, and other tacks, the entry whereof to be at the ish of the first, may defend themselves thereby, although the lessor should sell the land, before the entry of the last tack, which will not thereby be reputed to be conferred in tempus indebitum.

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Margaret Preston, relict of Mr. Alexander Thomson, pursued the tenants of Duddingston to remove. They excepted, that they had tacks for terms to run set long before the warning, and long before the pursuer’s right granted to them by the pursuer’s author, and by virtue thereof in continual possession. It was answered, That the exception was irrelevant, unless they would condescend that the entry was appointed before the pursuer’s sasine; because, albeit the tacks were set before the pursuer’s sasine, yet the entry thereof being appointed to begin at the issue of the former tacks, which was long after the pursuer’s sasine, the said tacks were null, being conferred in tempus indebitum, the mid impediment of the pursuer’s sasine intervening; notwithstanding whereof, the Lords found the exception relevant, and thought that albeit in spiritual men’s feus, and tacks set by them, and not taking lawful beginning in their own time, the same were null; yet the like was not in this case, where the setters and receivers were temporal men, and no interruption made of the tacks, which albeit they were not in one body of a tack, yet being so conveyed that none could intervene betwixt the expiring of the one and beginning of the other, they should be reputed but a conjunct tack; and it was more reasonable that he that acquired the last right should seek his warrant than the poor kindly tenant. Some of the Lords remembered of a practick betwixt the young Laird of Bandovie and———, where the Duke of Lennox, Prior of St. Andrew’s, having set a tack of the teinds of Over Bandovie, having given a bond to the said——— that he should not set any other tack thereof, whereupon inhibition was raised upon the Duke, nevertheless Bandovie obtained a tack thereof from him, and thereby continued his possession; the Lords would not reduce Bandovie’s tack upon the said former tack, bond, and inhibition. There was also a tack set by the Laird of Halton to Thomas Young, of certain lands in Norton, whereupon Thomas warned Walter Young, tenant and possessor thereof, to remove. Walter excepted upon a tack obtained by him after the warning. It was replied, that tack could not defend him, because he could not take any tack after that he knew the pursuer to have a tack, whereupon he had used warning. It was answered, That he being kindly tenant and old possessor, he might lawfully renew his tack before the term of warning; which the Lords found relevant.

Fol. Dic. v. 2. p. 421. Haddington MS. No. 723.