Subject_1 PERSONAL and TRANSMISSIBLE. Subject_2 SECT. III.
What Rights go to Assignees.
William Sanderson v. The Marquis of Tweeddale and John Carfrae
Date: 24 November 1756 Case No. No 87.
A lease grant to a man, 'his heirs, executors, and assignees whatsoever, with whom the proprietor shall be content, and accept of allenarly,' is not assignable even in security of a debt, without the proprietor's consent.
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The Marquis of Tweeddale granted a lease of the farm of Gamilstone to Walter Hay, “his heirs, executors, and assignees whatever, of no higher degree than himself, and with whom the Marquis shall be content and accept of allenarly.” This lease was to endure for forty-five years and a life.
Hay assigned this lease to Sanderson, but reserved to himself a faculty of resuming his right, on payment of all the money which Sanderson had advanced for him, or expended upon the farm.
Sanderson brought on action for encroachments against Carfrae, a neighbouring tenant. The Marquis, of Tweeddale appeared for his interest, and objected, that action was not competent at the instance of Sanderson, as not being an assignee accepted by him; and he laid his plea on the clause aforesaid in the lease to Hay, and on the decision 4th December 1747, Elliot against the Duke of Buccleugh, No 14. p. 10329.
Pleaded for Sanderson; This clause by which all assignees are, with one limitation, admitted, is neither equivalent to a clause expressly secluding, nor to a clause admitting all assignees; the limitation must imply, that the Marquis may refuse an assignee, providing always that he show some reasonable cause for such refusal. No such cause is here pretended. Had the Marquis meant to have reserved to himself an arbitrary power of refusal, he would have expressly secluded assignees; but this has not been done, although most usual in leases. Nor can a lease which is granted to executors import a total exclusion of assignees. The, decision Elliot against the Duke of Buccleugh is not in point; in that case, the tack was conceived “to heirs and such of the tenant's assignees as the Duke should approve of, excluding all others his assignees.” The Court found, “that the tack, as it expressly secluded assignees, was not adjudgeable.” There assignees were particularly excluded; here they are not. Further, there is a difference between the adjudication of a lease and an assignation of a lease, granted, as in this case, in security of a debt. The former becomes, at the expiry of the legal, an absolute right, and substitutes a new tenant in the place of the original tenant. The latter leaves to the cedent the right to the lease, and the faculty of resuming the exercise of that right. Hereby the proprietor is not prejudiced, but benefited; for that the cedent continues, and the assignee becomes liable to him.
Pleaded for the Marquis of Tweeddale; The clause imports, that the lease shall go to such assignees only as the Marquis shall be pleased to accept, nor is he bound to show cause for not accepting; such obligation would be productive of frequent law-suits. No argument can be drawn from the insertion of the word executors. It is a word of style inadvertently employed; and, were the question with executors claiming right to the lease, it would be held pro non adjecto. The case of Elliot is in point; there the lease was to such assignees as the master shall consent to, excluding all others; here to such assignees as he shall accept of allenarly. In both cases it is provided, that the lease be assignable only with consent of the master. According to the judgment in the case of Elliot, this lease is not adjudgeable; and if not adjudgeable, it cannot be assigned; for that an adjudication is a legal assignation; and if a legal assignation be not effectual, a voluntary assignation cannot. Neither does it vary the case, that the assignation to the pursuer is not absolute, but in security for a debt; for that if the tenant may thus assign the lease to one creditor, he may, by parity of reason assign it to all his creditors successively, whereby he and they would alternately possess the farm; no master can be presumed to have granted a lease on terms so manifestly detrimental.
“The Lords found that the pursuer had no title to insist in this action.”
Act. Garden, D. Dalrymple.Alt. Hay, A. Pringle, Lockhart.Clerk, Kirkpatrick.
Fac. Col. No 218. p. 316.
