Scottish Court of Session Decisions

Subject_1 COMPETITION.
Subject_2 SECT. X.

Assignation to Mails and Duties, with other Rights.

Morison
v.
Tenants of Orchardtoun

Date: 28 November 1635
Case No. No 53.

A landlord binds his tenants to pay their rents to certain creditors named in their tacks. An appriser of the land found preferable to these creditors.

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John Morison pursues the tenants of the lands of Orchardtoun, for payment of the mails and duties thereof to him, by virtue of his infeftment and comprising of the lands from the heritor, and they, and certain others of the heritor's creditors compearing, and defending with a tack of the lands set by him to the tenants, for payment of the duties therein exprest; which duties, by the said tack, they were obliged to pay to the particular persons specially enumerated in the said tack, who were the said heritor's creditors, for satisfying of the annualrent of their debt yearly, and so much of their principal sum as the said rents, by and attour these annualrents will extend to; in respect whereof, the creditors foresaid alleging, That they ought to be preferred in the duties of the said tack to the compriser, seeing the said tack not only precedes the said comprising, and all other diligence done by the compriser, but also is before the debt whereupon he comprised; and this tack must be repute, as if the same had been set to these creditors themselves per expressum, seeing it is expressly set for payment of the duties to them nominatim.—And the other answering, That his comprising and infeftment gives him right to the duties of the tack, he being heritor now and singular successor; and the tack must be esteemed as if the duty thereby had been paid to Orchardtoun himself, quo casu he would have been preferred.——The Lords repelled this allegeance, and preferred the compriser in the mails and duties of the tack to the creditors, albeit specially named, to whom, by the tack the duties thereof are appointed to be paid; seeing the author of the tack being denuded of his heritable right by the comprising and infeftment, the duty behoved to pertain to the heritor, and could endure no longer to the use of his other creditors, than during the space that the heritable right remained with him who set the tack; but found, That the said tack-duty pertained to the said pursuer's singular successor, by apprising and infeftment.

Clerk, Scot. Fol. Dic. v. 1. p. 181. Durie, p. 780. *** Spottiswood reports the same case:

John Morison having comprised certain lands from the Laird of Orchardton, pursued the tenants for payment of their mails and duties. Alleged, That they were tenants to John Brown of Mollance, who, long before the pursuer's comprising, or the debt which was the ground of it, had tack and assedation set to him by Orchardton of the same lands, whereof there were terms to run; and that for payment of certain of Orchardton's creditors of their yearly annualrents, and so much of their principal sums as the rents of the lands would extend to, by and attour the annualrents: conform whereunto he hath been in possession divers years of uplifting the mails and duties, and in paying the creditors so far as they did extend to. Replied, Not relevant to exclude the pursuer's right, who must be preferred to all the rest of the creditors, although prior, because of his diligence, having comprised and being infeft. Duplied, His diligence cannot prejudge the tack that was prior to it, which tack set to Mollance in favours of the creditors, is all one as if it had been set to the creditors themselves; in which case they would have been preferred to the compriser. Triplied, The tack is no more in effect than the assignation to the mails and duties, whereunto the assignees can have no more right after the cedent is denuded of the property.——The Lords repelled the allegeance, and preferred the compriser to the other creditors.

Spottiswood, (Comprising) p. 54.