The tutor of a person cognosced for insanity, cannot, of his own authority, grant a lease to last beyond the endurance of his office.
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Hugh, Lord Reay, who held the estate of Reay under a strict entail, having been cognosced for insanity in 1768, his three uncles, and the survivor of them, were appointed his tutors dative.
In the year 1787, General Mackay, the surviving tutor, granted to James Anderson, Thomas and James Arbuthnots, a lease of the salmon-fishings and kelp-shores of the estate, as also of certain lands on the coast, with a store-bouse, for the purpose of the fishings, for four times nineteen years; the tenant was to pay a grassum at the commencement of each nineteen years, at each of which periods either party was to be entitled to put an end to the lease, on giving eighteen months previous notice; and it being understood that large sums would be expended by the lessees in buildings, and other purposes necessary for the speculation, the landlord, on taking advantage of the breach, was bound to repay them to the amount of £.1500.
Hugh, Lord Reay, died in the year 1797, and was succeeded by Eric, Lord Reay, the next heir of entail, who brought a reduction of the lease.
The defenders contended, that the lease had been a prudent act of administration; the pursuer, on the other hand, asserted, that it was quite the reverse, and very prejudicial to his interest.
But parties joined issue on the abstract point of law, How far a tutor can grant a lease for a period beyond his own power of administration?
The pursuer held it to be perfectly established, that the power of granting a lease must, in every case, correspond with the right of the granter over the subject of it. The holder of a subject in fee-simple, lies under no limitations in this respect; a life-renter cannot exceed his own life-time; nor a tutor or other temporary administrator the duration of his office; Craig, Lib. 2. Dieg. 10. § 1.; Stair, B. 2. Tit. 9. § 3.; Bankt. B. 1. Tit. 7. § 29; Ersk. B. 1. Tit. 7. § 16, No. 171. p. 16285. Upon this principle, the act of sederunt, 13th February, 1730, § 8. was considered necessary, to enable a judicial factor to grant a lease even for one year beyond the continuance of the lands under the management of the Court. This rule, no doubt may, in some cases, prevent subjects under temporary management from being let to full advantage; but this inconvenience is more than counterbalanced, by its removing the dangerous consequences which might result from unlimited powers.
The pursuer, at the same time, declared his willingness, exgratia, to indemnify the defenders for sums beneficially expended by them.
The defenders answered: It is sufficient for the protection of pupils or minors, that they be restored against the injudicious acts of their guardians. The abstract doctrine maintained by the pursuer, would make it quite unsafe to transact with them, and would be very prejudicial to the pupil, particularly where the landlord's period of incapacity was so indefinite, as in case of insanity, and the subject of the lease required a large advance of money, and consequently a long lease to indemnify the tenant.
Our systematic writers have followed a dictum of Craig, at a period when the benefit from granting permanent leases was not understood; and their opinion is neither supported by sound reasoning, nor a train of decisions; 12th December, 1739, Williamson against Fraser, No. 79. p. 8965; 22d December, 1739, Erskine against Daughters of Erskine, No. 133. p. 9002; 17th March, 1561, Sinclair against Sinclair, (See Appendix;) 21st February, 1671, Armour against Lands, No. 168. p. 16284; see also, Kames, Preface to Dict. and Select Decisions, and 9th March, 1775, Gillon against Muirhead and Husband, No. 168. p. 15286.
The Lord Ordinary reduced the lease, and ordered a condescendence as to meliorations.
Upon advising a petition, with answers, the Court, upon the general principles, unanimously adhered.
Lord Ordinary, Craig.Act. Solicitor-General Blair.Alt. W. Baird.Clerk, Pringle.
Fac. Coll. No. 163. p. 366.
*** The Court have also, in particular circumstances, authorised such leases to be granted, for the evident utility of the pupil, 6th March, 1761, Roebuck against Duke of Hamilton, (not reported;) and 6th March, 1800, Colt against Colt, No. 317. infra.
