William Drummond v. Margaret Macpherson and David Taylor
Date: 9 July 1799 Case No. No. 6.
A lease by which the tenant is taken bound to reside on the farm, and not to assign or subset, found to be forfeited by his being banished Scotland for life.
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Thomas Taylor possessed certain lands on a minute of lease granted by William Drummond, for nineteen years, or Taylor’s lifetime, ‘which either of the two should happen to be longest,’ he being bound ‘to live locally on the said possession with his family yearly, and not to assign or subset the same.’
In 1792, he was indicted for sheep-stealing, and fugitated for non-appearance. The fugitation was recalled in 1797, and Taylor, on his own petition, with consent of the Advocate-Depute, was banished Scotland for life, by the Circuit-Court of Justiciary.
In 1796, Mr. Drummond brought an action of removing against Margaret Macpherson the tenant’s wife, and David Taylor his eldest son. At this time, the lessee was still in the country, and in fact, continued to reside on the farm ; but as he lay under a sentence of fugitation, he was not cited as a defender, on account of his not having a persona standi. The original ground of the action was, that as Taylor could not legally comply with the condition of residence under which the lease was granted, it was necessarily vacated.
The Sheriff decerned in the removing, nearly about the same time that Thomas Taylor was banished, as above mentioned.
The defenders brought a suspension of the Sheriff’s judgment, and
Pleaded : The minute of lease is to be considered as creating a liferent provision for Thomas Taylor and his family. The obligation to residence is not to be strictly interpreted. It is substantially fulfilled, if, without assigning or subsetting, the tenant allows his family to remain in possession. There has been no voluntary desertion on his part, and his family should not be implicated in his crime. Had he become insane, and been removed to a place of confinement, his family, during his life, would have remained in possession, and the present circumstances do not warrant a different judgment.
Observed on the Bench : An obligation by a tenant to reside on his farm, gives the landlord no power to remove him beyond what would arise from a simple exclusion of assignees and subtenants. But if, in opposition to either of these limitations, a tenant deserts his possession, or is banished Scotland, as he no longer fulfills the condition of his lease, it falls of course.
The Lord Ordinary found the letters orderly proceeded, and two reclaiming petitions against this judgment were refused without answers.
Lord Ordinary, Armadale.Act. W. Erskine.Alt. Jo. Clerk, Hagart, Macfarlan.
Fac. Coll. (Appendix,) No. 7. p. 13.
