TACIT LAW. A law which derives1 its authority from the common consent of the people, without any legislative2 enactment3. 1 Bouv. Inst. n. 120.
TACK4, Scotch5 law. A contract of location by which the use of land, or any other immovable subject, is, set to the lessee6 or tacksman for a certain yearly rent, either in money, the fruits of tho ground, or services. Ersk. Prin. Laws of Scot. B. 2, t. 6, n. 8; 1 Tho. Co. Litt. 209. This word is nearly synonymous with lease.
TACKING7, Engl. law. The union of securities given at different times, so as to prevent any intermediate purchasers claiming title to redeem8, or otherwise discharge one lien9, which is prior, without redeeming10 or discharging other liens11 also, which are subsequent to his own title. Jer. Eq. Jur. B. 1, c. 2, §1, p. 188 to 191; 1 Story, Eq. Jur. §412.
2. It is an established doctrine12 in the English chancery that a bona fide purchaser and without any notice of a defect in his title at the time of the purchase, may lawfully13 buy any statute14, mortgage, or encumbrance15, and if he can defend by those at law, his adversary16 shall have no help in equity17 to set those encumbrances18 aside, for equity will not disarm19 such a purchaser. And as mortgagees are considered in equity as purchasers pro20 tanto, the same doctrine has extended to them, and a mortgagee who has advanced his money without notice of any prior encumbrance, may, by getting an assignment of a statute, judgment21, or recognizance, protect himself from any encumbrance subsequent to such statute, judgment or recognizance, though prior to his mortgage; that is, he will be allowed to tack or unite his mortgage to such old security, and will by that means be entitled to recover all moneys for which such security was given, together with the money due on his mortgage, before the prior. mortgagees are entitled to recover anything. 2 Fonbl. Eq. 306; 2 Cruise, t. 15, c. 5, s. 27; Powell on Morg. Index, h. t.; 1 Vern. 188; 8 Com. Dig. 953; Madd. Ch. Index, h. t.
3. This doctrine is inconsistent with the laws of the several states, which require the recording22 of mortgages. Caines' Cas. Er. 112; 1 Hop23. C. R. 231; 3 Pick. 50; 2 Pick. 517.
4. The doctrine of tacking seems to have been acknowledged in the civil law, Code, 8, 27, 1; but see Dig. 13, 7, 8; and see 7 Toull. 110. But this tacking could not take place to the injury of intermediate encumbrancers. Story on Eq. §1010, and the authorities cited in the note.
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