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Scottish Court of Session Decisions >>
Sir James Dalrymple of Hailes v Hepburn of Binston. [1737] Mor 9444 (26 January 1737)
URL: http://www.bailii.org/scot/cases/ScotCS/1737/Mor2309444-029.html Cite as:
[1737] Mor 9444
Obligation to grant a Right. - Whether such an Obligation be equivalent, as if the Right were granted.
Sir James Dalrymple of Hailes v. Hepburn of Binston
Date: 26 January 1737 Case No. No 29.
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In the year 1629, the parson of Prestonhall granted a tack of teinds, expiring in February 1728. In the end of the tack there is an obligation upon the granter and his successors, parsons of the said parish, after the ish of the present tack, to renew the same in favour of the tacksman and his heirs, for the like number of years, and the like tack-duty. The question was, If this obligation to renew was real and good against singular successors in the right to the teinds, so as to defend the tacksman and his heirs against the patron, who obtained right to the said teinds, in virtue of the act 1693, before any possession could be had upon the said obligation? It was pleaded for the tacksman; The obligation to renew is of the nature of a prorogation, which is a real right, and this must have been the meaning of parties; for, considered as a personal obligation, it could have no effect beyond the granter's life, seeing he could not bind his successor in office. Answered for the patron, Had the lands fallen below the tack-duty, there was no obligation upon the tacksman to continue in possession, and pay the tack-duty, after expiration of the tack in 1728. This obligation, then, can never be understood the same with a tack, or a prorogation of a tack, since it is not so much as a mutual contract.——The Lords found the obligation not effectual against a singular successor.——See Appendix.
