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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Mr John Arbuthnot v James Colquhon. [1772] Hailes 464 (5 February 1772) URL: http://www.bailii.org/scot/cases/ScotCS/1772/Hailes010464-0247.html Cite as: [1772] Hailes 464 |
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[1772] Hailes 464
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 TACK - PERSONAL AND TRANSMISSIBLE.
Subject_3 Clause in a Tack, that the tenant, at his removal, shall be paid the expense of inclosing, effectual against a singular successor in the land.
Date: Mr John Arbuthnot
v.
James Colquhon
5 February 1772 Click here to view a pdf copy of this documet : PDF Copy
[Fac. Col. VI. 5; Dict. 10, 424.]
Gardenston. This precise question was determined in favour of the purchaser, as the Ordinary has determined it, December 1760, M'Dowal of Logan against M'Dowal of Glen. I was lawyer on the losing side, the Ordinary on the winning; but I thought the decision erroneous.
Monboddo. The decision in 1760 is certainly erroneous. A purchaser has a right to exact rent from the tenants, although the tacks are not assigned. He must therefore perform every intrinsic obligation in the tacks, though not extrinsic. Suppose the lease to last 900 years, would you deny action against the purchaser and his heirs, and oblige the tenant to seek his relief from the heirs of the seller? If this interlocutor stands, no tenant will ever improve his farm, for he will have no security for improvements bestowed, although there be a provision in the contract of lease to that effect.
Coalston. If a purchaser has the benefit of tacks, he must undergo their
burden. Obligations to uphold houses, to furnish great timber, to bear the joint expense of maintaining fences, are all usual obligations on the proprietor. If they do not pass as obligations on the purchaser, a tenant has no security. A high rent is often stipulated upon the proprietor becoming bound to furnish lime. In such case the purchaser would be liable. Auchinleck. If the seller becomes bankrupt, what will become of the tenant?
Pitfour. When a contract is mutual, and the prestations are not divisible, the assignee comes in the place of the original obligant, and must take the contract as it stands. There is indeed a difference between clauses in a tack which are intrinsic and those which are extrinsic. A clause essential ad bene esse, though not ad esse of a tack, may be held intrinsic.
On the 5th February 1772, the Lords found Sir James Colquhon, the purchaser, liable to perform the obligation in the tack; altering Lord Hailes's interlocutor.
Act. J. Douglas. Alt. J. Colquhoun.
The electronic version of the text was provided by the Scottish Council of Law Reporting
