The lease of an urban tenement was found equally effectual against singular successors, as alease of lands.
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David Macquater, in 1791, by a missive, granted to John Brown, a lease of a dwelling-house and workshop in Glasgow for 17 years. Brown immediately entered into possession.
In 1792, Macquater sold these subjects to James Waddell, who, in 1793, brought an action of removing against Brown, in which he stated, that he had not been informed of the existence of the lease at the time of the purchase, and in point of law.
Pleaded: A lease is at common law a mere personal right; Bankton, b. 2. tit 9. § 1. The statute 1449. c. 17. has indeed made leases of “lands” effectual against singular successor, but neither the letter nor the spirit of that statute apply to leases of urban tenements. It is declared to have been made for the “saftie and favour of the puir people that labours the ground.” Indeed, at its date, there were no leases of houses within burgh, and therefore it could not be intended to remedy an inconvenience which did not exist.
Besides, a farm or other rural subject, when let in lease, yields an annual profit; from it the lessee in general derives the maintenance of himself and family, and upon the faith of the lease, he lays out his stock in making improvements. Such lease is therefore much more an object of favour than that of an urban tenement, from which the possessor derives no income, and on which he is not even entitled to make meliorations without the consent of the proprietor; Erskine, b. 2. tit. 6. § 27.; 5th February 1680, Rae against Finlayson, voce Tack.
Answered: The act 1449, was meant to protect lessees of all heritable subjects, Stair, b. 2. tit. 9. § 2.; accordingly, although poor labourers of the ground only are mentioned, it was early extended to lessees of mills and fishings; besides, the word “lands,” in our law language, comprehends burgage as well as rural tenements; 27th January 1768, Maclauchlan against Maclauchlan, voce Tailzie.
The exclusion of urban tenements, too, from the benefit of the statute, in the present state of society, would be highly inexpedient and unjust, when leases, not of dwelling-houses only, but of valuable buildings within burgh for the purpose of manufactures, are frequently granted, and on the faith of the latter large capitals expended; particularly, as the universal understanding of the country has long been, that they are good against singular successors.
The decision, 5th February 1680, Rae against Ferguson, is erroneously stated in Lord Kames's Dictionary, the point now in question not having occurred in that case; and as Mr Erskine refers to this decision, as abridged in the Dictionary, as the sole ground of his opinion, it is entitled to no consideration.
The Lord Ordinary found, “That the missive of set by David Macquater the former proprietor, in favour of John Brown the tenant, being clothed with possession, is effectual against James Brown the purchaser.”
On advising a reclaiming petition and answers, the Court considered the case as perfectly clear, and unanimously “adhered,”
Lord Ordinary, Polkemmet.Act. Jo. Clerk.Alt. Connel.Clerk, Menzies.
Fol. Dic. No 142. p. 326.
