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Scottish Court of Session Decisions >>
Creditors of Douglas of Dornock, v Robert and John Carlyles. [1757] Mor 15219 (2 July 1757)
URL: http://www.bailii.org/scot/cases/ScotCS/1757/Mor3515219-085.html Cite as:
[1757] Mor 15219
Creditors of Douglas of Dornock, v. Robert and John Carlyles
Date: 2 July 1757 Case No. No. 85.
The same subject.
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In July, 1729, Douglas of Dornock having borrowed a sum from Robert and John Carlyles, granted them a lease of certain lands, at a rent equal to the interest of their money, to continue for twenty-one years, with a power of retaining the rent for payment of their interest.
The lease contained a clause, by which it was prorogated from year to year after the elapse of the term stipulated, “ay and while the principal sum in the bond remained unpaid.”
The estate of Mr. Douglas was sequestrated at the suit of heritable creditors and adjudgers in July 1759, after the twenty-one years specified in the lease were elapsed. But the tenants insisted, That, in virtue of the prorogation, they were intitled to continue in the farm till their debt was paid.
Argued for the credtiors of Dornock, That though tacks are, by the law of Scotland, real rights from the time possession has followed upon them; yet prorogation of tacks do not become real till possession has commenced upon the prorogation; and if a preferable right intervenes before such possession commences, the tack cannot be effectual: That the prorogation in this case is from year to year: and therefore possession had not followed upon the prorogation for the year 1757, before the sequestration intervened at the suit of heritable creditors and adjudgers in July 1756, by which the creditors came to have a preferable real right to the whole estate, and to the management of it under the direction of the Court: That this point of law had been decided by the Court, Thomas Scot against the Creditors of Lord Cranston, (supra), although a contrary decision had formerly been given, Richard against Lindsay, No. 83. p. 15217. where it was found, that possession upon a former subsisting tack was sufficient to render a prorogation real, though the term of entry upon the prorogation was not come.
“The Lords found, That the tack could not subsist by virtue of the annual prorogation, after the estate was sequestrated.”
Act. Johnstone.Alt. H. Dalrymple.Clerk, Forbes.
Fol. Dic. v. 4. p. 323.Fac. Coll. No. 32. p. 55.
