Scottish Court of Session Decisions

Subject_1 BONA FIDE CONSUMPTION.
Subject_2 SECT IV.

Effect of Sequestration as inducing Mala Fides.

M'Tavish
v.
M'Lauchlan

Date: 11 February 1748
Case No. No 16.

A tenant had been allowed to retain his rent, in lieu of interest of money. The estate was sequestrated. Pursued by the factor for rents subsequent to a sequestration, he was found in bona fide to impute the rents in payment of the interest, till interpelled by the citation.

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Sir James Campbell of Auchinbreck borrowed upon bond, 15th February 1729, from Kenneth M'Lauchlan of Killinuchanach, 4000 merks Scots, and of the same date granted him a tack of certain lands, for five years from the Whit-sunday following, for the tack-duty of 200 merks money, and two stones butter, four wedders, and one dozen poultry, and relieving the heritor of all public burdens; declaring, “That notwithstanding the tack-duty was payable to Sir James as above expressed, yet it was agreed and concerted, that Kenneth M'Lauchlan was yearly to retain the interest of the above sum; a discharge of which interest being always to be received as payment of so much of the tack-duty.” And further, that the tack, though but for five years, was to continue ay and while the foresaid sum was paid.

The estate of Auchinbreck was sequestrated 1739, after which Mr M'Lauchlan continued to retain the tack-duty for the interest of his sum; but he did not allege, and it is probable he did not from that time deliver to Sir James any discharge, as he had formerly done; but Dougal M'Tavish the factor having, 30th November 1742, obtained decreet against him for the rents since the sequestration, and in time coming, he suspended on the condition of his tack; contending, that while he continued his possession, he could only be liable in the superplus prestations, and was entitled to compense the money-rent with the interest due to him; but did not dispute whether the five years, for which the tack was determinately set, being expired, he was not liable to be removed, notwithstanding the other clause in his favour.

The Lord Ordinary, 26th December 1747, ‘found that the estate of Auchinbreck being sequestrated by authority of the Lords, without excepting the suspender's possession, it was not competent for him to judge of reasons of suspension, which in effect resolved in exeeming the suspender's possession from the sequeftration, and therefore hoc statu found the letters orderly proceeded, but prejudice to the suspender to apply to the Lords to have his possession struck out of the sequestration,’

Pleaded in a reclaiming bill, That such clauses were effectual in favour of tenants, who could not be obliged to perform more to singular successors than they had bound themselves to by their tack, to wit, to grant discharges of the interest due to them, especially where there was a superplus duty; so that it could not be said the tack was without a duty payable to the successor, and so had been often found, as 22d January 1625, Ronald against Strang, Durie, p. 158. voce Tack; 15th June 1664, Thomson against Reid, Stair, v. 1. p. 198. Ibidem; 11th December 1677, Oliphant against Currie, Stair, v. 2. p. 574. Ibidem.

The case had been more dubious where the tenant retained his whole duty, and there the Lords had varied, finding against him, 20th June 1629, Keith against Ogilvie, Durie, p. 448. Ibidem; and for him, 13th November 1679, Seton against White, Fount. MS. Ibidem: But both these cases concerned the question of removing; and it was never found the tenant, while allowed to continue his possession was liable to more than the prestations in this tack.

Answered, That by act 18th, Parl. 6th, Ja. 11. tenants were entitled to the possession of their tacks against successors, for sicklike mail as they took them for and therefore, this tenant was not entitled to retain his farm-duty for his interest, because that was not paying to the creditors the mail for which he took the farm; though it was really paying it to Sir James: That in some cases, indeed, such clauses had been sustained in favour of the tenant during the currency of the particular number of years for which the tack was set; but after expiration thereof, had always been found-ineffectual, as in the cited case, Thomson against Reid; 16th June 1665, Dobie against Stephenson, Newbyth, MS. voce Tack; Montgomery against the Parishioners of Kirkmichael, Stair, v. 2. p. 206. Ibidem; 27th June 1674. Peacoek against Lauder, Stair, v. 2. p. 274. Ibidem.

Argued on the Bench, That the distinction was not solid betwixt the cases of a superplus duty and none; for the retainable sum, as well as the superplus, was the rent and the setter could not enable the tacksman to retain from his successor a part thereof, more than the whole. It was further argued, on the supposition that the whole rent was exigible, whether the tenant was not in bona fide to impute it to the payment of his interest, until he was interpelled.

The Lords sustained the reasons of suspension as to all the-money-rents falling due before the decreet of the 30th November 1742; but found the petitioner liable for the said rents for all the years and terms after the said decreet.

Act. Lockhart. Alt. Hay. Clerk, Kirkpatrick. Fol. Dic. v. 3. p. 95. D. Falconer, v. 1. No 240. p. 325.