A power of subsetting is implied in a lease of land for thirty-eight years.
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David Gray possessed a farm, on a lease for thirty-eight years, in favour of himself, his heirs and executors. Having granted a sublease of it to David Webster, William Simson, the landlord, five years afterwards, brought a process in order to set it aside, in which he disputed the tenant’s right of subsetting, and
Pleaded: Formerly, when leases, like feudal rights, were so strictly personal to the tenant, that he could not, in the common case, transmit them even to his heir-at-law, without an express clause to that purpose, it might have been doubted how far, in the case of a lease for a period far exceeding the ordinary duration of human life, a power of subsetting was not implied; but as leases now descend to heirs, unless expressly excluded, and the delectus supposed in the contract is confined to the family, rather than to the person of the lessee, there seems no reason why the duration of the lease should have any effect on the power of transferring it. Indeed, if it were to be established as a general rule, that a right of subsetting is implied in every case where the landlord must have laid his account with a change in the person of his tenant, his age, and the other circumstances of his situation, must, in every case, be taken to the account, as well as the duration of the lease. It is a fixed point, that a power of subsetting is not implied in a lease for nineteen years; Alison against Proudfoot, No. 170. p. 15290.; neither should it in the present.
The Lord Ordinary repelled the reasons of reduction, “in respect it cannot be supposed, that the representer (pursuer) and his factors were unacquainted, for five years together, how and by whom the farm libelled was possessed.”
The Court, upon the general ground, that a power of subsetting is implied in a lease of thirty-eight years, unanimously “refused” a reclaiming petition, without answers.
Lord Ordinary, Stonefield.For the Petitioner, R.Craigie.Clerk, Simclair.
Fol. Dic. v. 4. p. 329.
Fac. Coll. No. 117. p. 260.
