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Montgomery v Montgomery. [1673] Mor 841 (27 July 1673)
URL: http://www.bailii.org/scot/cases/ScotCS/1673/Mor0200841-034.html Cite as:
[1673] Mor 841
Subject_1 ASSIGNATION. Subject_2 What rights are established by Assignation without the necessity of intimation.
Montgomery v. Montgomery
Date: 27 July 1673 Case No. No 34.
A tack of teinds being assinged to the heritor himself, the assignation was found effectual in a competition from its date, requiring no information.
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Neil Montgomery having apprised his father's tack of the teinds of Kirk-michael, pursued reduction of the sub-tacks granted to the heritors, which being granted during the not payment of a sum, and so having no determinate ish, were found null against the appriser, as is observed upon the 8th day of July instant.*—Bridge-end, one of the heritors, further alleged, That in his sub-tack there is this clause, “That for the sub-tacksman's further security, the principal tacksman assigns him to all right he hath to the said teinds in so far as may concern his lands,” which being an assignation, requires no ish, and may be perpetuate, and is a habile way of transmitting tacks.—It was answered, That this clause could only be understood for further security of the tack, which being null, it could not support it. 2do, There is no mention in it of the principal tack. 3tio, The sub-tack was in March, and the apprising was in May; so that the subtack could not attain possession before the setter was denuded by the apprising.—It was replied, That being set to the heritor himself, it could not be intimated to himself, but his possession both of land and teind was sufficient.
* Stair. v. 2. p. 206. Montgomary against Purishioners of Kirkmichael, voce Tack.
The Lords sustained the clause, as being an assignation to the heritor himself, which needed no further intimation or possession.
In this process it was also found, That the annuity is a burden, being upon the principal tacksman, and no part thereof upon the sub-tacksman, unless they were obliged by the tenor of the tacks; and the annuity did not divide upon the tacksmen and sub-tacksmen according to their benefit. ( See Teinds.)
