Scottish Court of Session Decisions

Subject_1 TACK.
Subject_2 SECT. V.

Competition betwixt Tacks, and betwixt Tacks and other Rights.

Earl of Morton
v.
His Tenants

Date: 14 July 1625
Case No. No. 95.

A tackman having granted a subtack, and thereafter renounced the tack in favour of his master, the master was preferred, for tho' the subtacksman was in the natural possession before the date of the renunciation, it was upon a separate title, and not qua sub-tacksman.

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In an action betwixt the Earl of Morton and his tenants, a tack being set by the Earl to a tacksman therein named, and to his heirs, for the space therein contained, and the tacksman being, by virtue thereof, in possession of the lands, and thereafter the tacksman making another sub-tacksman to him for the years of the tack, and disponing his right to the said sub-tacksman, who sicklike became in actual and real possession of the said lands, by labouring of the same by himself, with his own goods; after the which disposition and possession acquired by the said subtacksman divers years, the principal tacksman renounces his tackin the Earl's favours, who seeks removing from the lands. In which action, many of the Lords were of opinion, that the sub-tack foresaid was not a sufficient title to maintain the subtacksman against the said removing, albeit it was clad with possession, and that it preceded the renunciation foresaid made by the principal tacksman, in respect that the said principal tack was not set by the Earl to the tacksman, his heirs and assignees, but only set to him and his heirs, so that they thought, in respect of the tenor of the tack, which bore not assignees, that the said tacksman had no power to dispone this tack to any other, and that the pursuer was in bona fide to accept of renunciation from his own tacksman of the said tack, at any time, and that the same would exclude the sub-tacksman's right; but others of the Lords, and the greatest part, were of a contrary opinion, and so it was decided in favours of the defender.

1625. July 28.—In a removing at the Earl of Morton's instance against Hamilton, wherein the defender alleging him to be sub-tacksman to James Douglas, who had a tack of the lands libelled, set by the pursuer to him and his heirs, for years yet to run at the time of the warning, it being controverted, if this sub-tack could defend the excipient, because the principal tack was not set to the principal tacksman, his heirs and assignees, neither bore the same power to set a sub-tack, nor to in-put or out-put tenants; in respect whereof, the pursuer alleged, that he could not set a sub-tack; which point was not discussed, albeit many of the Lords appeared to incline to think, that he could not make a valid sub-tack, for the reasons alleged; but the Lords repelled the exception foresaid, founded upon the sub-tack, because the principal tacksman being debtor to the pursuer in certain by-gone duties of the tack, for the not payment whereof he was denounced rebel, he for satisfying of the said duties, had renounced the right of the tack to the pursuer; which renunciation, albeit it was made after the sub-tack made to this defender, yet the Lords sustained the same, because the sub-tack was never intimated to the pursuer, so that he could not know the same, but might lowfully take a renunciation from his own tacksman, for satisfying of the debt, and cause foresaid, whom he could never have known, by any legal deed, to be denuded of that right, in favours of any other; and whereas the defender alleged also, that he was in possession by virtue of the sub-tack, which was enough to maintain the same, being so clad with real possession of the lands, and which was as sufficient as an intimation; so that, after the said sub-tack, the tacksman could do no deed to the pursuer which could derogate to that right acquired lawfully before. The Lords sustained the renunciation foresaid, albeit done after the sub-tack, notwithstanding of the alleged possession, because the sub-tacksman was in possession of the lands divers years before he acquired the said sub-tack; so that the continuation of that possession, which he had before, could not be ascribed to the sub-tack to be any impediment to hinder the pursuer to receive the said renunciation, and to make it unprofitable to him, except the right of the sub-tack had been formally and specifically intimated to him, as said is.

Act. Hope. Alt. Stuart & Cunningham. Clerk, Hay. Fol. Dic. v. 2 p. 421. Durie, p. 177. & 182.