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Hume v Lyell [1680] Mor 10391 (21 June 1680)
URL: http://www.bailii.org/scot/cases/ScotCS/1680/Mor2510391-069.html Cite as:
[1680] Mor 10391
Subject_1 PERSONAL and TRANSMISSIBLE. Subject_2 SECT. III.
What Rights go to Assignees.
Hume v. Lyell
Date: 21 June 1680 Case No. No 69.
Take are personal, and cannot be conveyed to assignees, unless expressed.
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Margaret Hume being infeft in liferent in the lands of Belleta, obtained decreet against Janet Lyell and her mother, and their tenants, to remove; who suspend on this reason, That in the charger's infeftment the defender's liferent was reserved, she being first infeft. It was answered, That the suspender having set a tack to her son for years run, the same doth accresce to the charger, his relict, whom he infeft with absolute warrandice. It was replied, That the tack is only to the son, and mentions not heirs and assignees; and it is a known principle, that tacks are strictissimi juris, and not assigneable, when assignees are not expressed. It was duplied for the charger, That this can only be extended to exclude strangers, to whom the setter is not presumed to design the tack; but this cannot hold in prejudice of the tacksman's heir, or his relict; 2do, The suspender hath homologated the tack, by accepting the tack-duty from the relict, for terms after her husband's death. It was triplied, That the maxime is founded upon the nature of the right, wherein the masters of the ground affect a particular choise in their tenants, which therefore can be extended no further than the tacks bear, and so neither to assignees nor sub-tenants; and there is no necessity of a clause to exclude assignees, though ex super-abundanti that clause sometimes useth to be adjected, seeing the exclusion inest ex natura rei.
The Lords found this tack not assigneable, nor to accresce to the liferent of the tacksman's assignee.
Fol. Dic. v. 2. p. 75. Stair, v. 2. p. 772.*** Fountainhall reports this case:
A charge to remove.—Alleged, She bruiked by a tack set to her husband for seven years, whereof there were years yet to run.—Answered, The tack was only set to himself, without heirs or assignees, and so he being dead, it was only personal and expired.—Replied, They had continued in possession since his death, and had paid mail and duty, which explains sufficiently the meaning of parties.—Duplied, This possession was no homologation of the tack, it being not by virtue of the tack, but mere tolerance and tacit relocation; and the accepting mail and duty hath been found no homologation where the tack was null. The Lords found the tack expired, and decerned the defenders to remove.
