Scottish Court of Session Decisions

Subject_1 TACK.

The Purchaser and Creditors of Jordan-Hill
v.
The Earl of Crawford, Viscount Garnock

1752, Feb. 13.
Case No. No. 17.

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In 1701 the Earl's predecessor Crawford of Kilbirnie gave Jordanhill a tack for 400 years of a parcel of meadow ground, the tack-duty to be a proportion of the rent of the tenement, to be settled by the tacksman and a friend of Kilbirnie's, the Lord Boyle. In 1708 he sold Jordanhill the whole tenement for a price to be paid and other prestations, particularly thirling Jordanhill's estate to Kilbirnie's, then Viscount of Garnock's, mill. Jordanhill's affairs went into disorder, and the creditors, among the rest adjudged this part of his estate whereof he had not attained possession. But we reduced the minute of sale, not only because the estate of Garnock was entailed, but chiefly because the sale was on Jordanhill's part become imprestable. But he still continued to possess the bit of meadow, at least the factors did, although no rent was paid to Garnock. This bit of meadow was included in the proven rental of the estate and so purchased by Mr Houston the purchaser. But then Earl Crawford (formerly Garnock) claimed the meadow as his property; which brought on different questions. Houston claimed it as a part of his purchase, otherwise to be free of a part of the price. The creditors insisted on the 400 years tack as equal to property; and the Earl objected to the tack so as against law creating in effect a feu and conveying the property without infeftment; 2dly as contrary to the entail; 3dly, without a tack-duty. This was one of the cases reported by Lord Karnes as Lord Probationer, though not decided till this day. We all agreed that the tack would not be effectual against singular successors, and that the act of Parliament was only to be understood of tacks of ordinary endurance, otherwise it would render our records of no use. But then we thought it was good against the granter and his heirs, and I thought he might compel them to give him a precept of sasine. As to the third, we thought that where the tack-duty was referred to this arbitrium tertii that was no nullity, though he is dead, and that it resolved now in arbitrium boni viri, and the judgment of the Court. As to the second, though there was no clause prohibiting tacks, we thought it fell under the clause prohibiting alienations; but then it was objected that the irritant and resolutive clauses were not inserted in the titles of the setter of the tack but by reference to the original tailzie, and that the heirs were bound;—and therefore sustained the tack, but thought the purchaser would be entitled to a proportional abatement, as the rent that should be found due should bear to the proven rental of it.