Scottish Court of Session Decisions

Subject_1 TACK.
Subject_2 SECT. III.

Ish. - Indefinite Endurance, how limited?

Gordon
v.
M'Culloch

Date: 6 February 1633
Case No. No. 53.

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In a removing from the lands of Ardblair against Henry M'Culloch, at the instance of John Gordon of Ardwell, who had comprised the same from umquhile M'Culloch of Myrton, heritor thereof; the Lords found this right, and defence thereupon underwritten, relevant, to defend the tenant, viz. that the defender had a tack from the umquhile heritor before the comprising, which albeit it was expired before the warning, yet the same bearing this clause, “That the said setter received the defender and his heirs kindly tenants to him and his heirs in the said lands, after the expiring of the tack;” this clause was found sufficient to defend the defender from all removing during the tenant’s life-time, albeit the pursuer replied, that the clause ought not to be respected against the compriser, who was a singular successor; and that he alleged, that it could last no longer than the setter and receiver lived together, and that it should expire by any of their deceases; likeas the setter was deceased, and so it should expire, and the clause itself could not stand, neither was compatible with the tack, so long as the tack stood unexpired; and before it expired, that clause could not take beginning, the setter being dead, to whom he should have been kindly tenant admitted; and before that clause could take effect, the land being comprised, whereby it became void against this compriser, a singular successor; which reply was repelled, and the clause sustained, as said is.

Fol. Dic.v. 2. p. 418. Durie, p. 669.