William Haliday, Burgess of Edinburgh, and Arthur Temple, v. Adam Gardine of Greenhill
Date: 20 February 1706 Case No. No 22.
The fee of a tenement, repaired by the liferenter, affected with the principal sum expended in the repair thereof, but not burdened with annualrent of the re pairs during the liferenter's life.
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In the action at the instance of William Haliday, assignee by Arthur Temple, liferenter of a tenement of houses in Edinburgh, against Adam Gardine the fiar, for declaring the said tenement affected with, and adjudged for payment of the expense wared out by the cedent, in repairing and rebuilding thereof, after it was demolished by occasion of fire;
Alleged for the defender; No law obligeth any fiar of houses demolished by a public calamity to rebuild or repair the same for the use of a liferenter, who ought to suffer loss by the misfortune as well as the fiar; and, therefore, the whole expense of rebuilding and repairing cannot affect the property; for liferenters of houses are bound to preserve them in the condition they receive them, and no fiar tenetur ob casum fortuitum. If the tenement were affected with this bygone reparation, and should happen again to be burnt in the liferenter's time, the sum affecting the area would exhaust the value before the fiar succeed, and so the liferenter get the property by the reparation; yea, the very reparation will fail in time, and perhaps be of no great value to the fiar at the liferenter's death, 2do, Esto the fee of liferented tenements, demolished by fire, were affectable by the expense of rebuilding and reparation laid out by the liferenter; this could only be extended to what was necessary to put them in as good case as they were in before the burning. 3tio, By the Act 10. Article 5. Par. 4, Q. M. a liferenter making necessary and profitable reparations, his executors get only a third part thereof, and for so much only can affect the tenement.
Answered for the pursuer; The necessity and quantity of the expenses of the reparation being cognosced and proved by the Dean of Guild's warrant and decreet the same ought to affect the ground-right and property, as in rem versum to the fiar; and the liferenter's case is as favourable as that of any negotiorum gestor.
The Lords found the fee of the tenement is affected with the sum employed for reparation thereof; but ordained the parties to be heard, whether the liferenter or fiar should be liable for the annualrent of that sum, during the former's lifetime.
1708. February 17.—In a process at the instance of William Haliday, assignee by Arthur Temple, liferenter of a tenement of houses in Edinburgh, against Adam Gardine of Greenhill, the fiar, for declaring the said tenement affected with, and adjudged for the expense wared out by the cedent in repairing and rebuilding thereof, after it was demolished by occasion of fire, the Lords, February 20. 1706, found the fee of the said tenement affected with, sums employed for reparation, thereof. The pursuer now insists against Alexander Cuninghame, as come, in place of Greenhill by a right from him, for payment of the annualrent of the said sum, expended on reparations during the liferenter's lifetime.
Alleged for the defender,; 1mo, De jure fiars or proprietors, are not obliged to uphold or repair lands or tenements liferented, it being incumbent on the liferenter, both by the civil law and ours, to use the liferented subject salva, rei substantia, and to find caution that they shall leave the same in as good condition as they got it. And though there be a difference betwixt ordinary reparations, and extraordinary damages happening, by fortuitous calamity of fire, on the like, yet it is reasonable, even as to these, that both parties should bear the loss pro rata, effeiring to their interest in the subject; seeing the proprietor has no advantage by the, repaired tenement during Arthur Temple's life time, it were absurd to burden, him with annualrent for the reparations during his lifetime, or to affect the fee of the tenement with the same; for quem sequitur commodum, eum sequi debet, onus; especially considering, how, in tenements, within burgh, the interest of liferenters and fiars are estimated; the fee or property, though unliferented, being ordinarily valued at ten, and rarely at twelve years purchase, and the liferent valued at seven, and sometimes higher. 2do, By the Act. 10. Art. 5. Bar. 4. Q. Mary, the, executors of aliferenter got only a third after, his death of profitable and necessary reparations, without any annualrent for the interval of the, liferenter's lifetime; and by the present custom of Edinburgh, the liferenter of a burnt tenement pays two parts and the fiar a third of the expenses of reparations.
Answered for the pursuer: Though liferenters are bound to uphold and preserve the subject liferented; and may be charged to find caution for that effect, it was never pretended that a liferenter was obliged to rebuild or, repair, a house when burnt casu fortuito. Nor is the fiar at any more prejudice by paying annualrent, to the liferenter for the reparations expended by him, than if a third party had been at these expenses, which no doubt would have affected the fee, as,in rem versum. 2do, Queen Mary's act of Parliament was only an interim regulation. when the town was burnt by the English, and never since observed, as Sir George Mackenzie tells us.
The Lords found that the annualrent of the reparations could not affect or burden the fee during Arthur Temple's lifetime, while he or his assignee enjoy the rent of the tenement.
