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Scottish Court of Session Decisions >>
Campbell v Cunninghame. [1739] Mor 14375 (16 February 1739)
URL: http://www.bailii.org/scot/cases/ScotCS/1739/Mor3314375-017.html Cite as:
[1739] Mor 14375
Subject_1 SERVICE AND CONFIRMATION. Subject_2 SECT. II.
Heirs have right to Tacks without Service.
Campbell v. Cunninghame
Date: 16 February 1739 Case No. No. 17.
Whether an heir can convey a tack without a service?
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Captain Charles Campbell, purchaser of a part of the estate of Boquhan, in a sale at the instance of the apparent heir, having craved a deduction from the price effeiring to the value of the teinds, on this ground, That the defunet bankrupt had no right thereto, the alleged right being an old tack of the teinds to one of the defunct's predecessors, to which he had made up no title by service, without which it was pleaded, that though he had right to possess, he could not have conveyed, and therefore the teinds could not be sold be sold by the present apparent heir as an estate that was in the defunct; the Lords “Found, that the defunct having been in possession of the teinds upon the tack, the right to the tack was fully established in him without a service.”
Though it was said by the Lords, who were not clear about this point, that as this judgment, which supposed the heir's power to convey without service was new, it must as a consequence introduce this farther novelty, that a tack should be in hæreditate jacente of the apparent heir, and affectable by his creditors.
