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This case, which is No. 176. p. 15298. having been appealed, The House of Lords; (29th June 1804,) ‘Ordered and Adjudged, That the cause be remitted back to the Court of Session in Scotland, generally to review the several interlocutors complained of, and to consider how far the meaning of the word ‘heirs’ as that word occurs in the several parts of the lease of the 18th January 1759, and the general contents of that lease, may affect the construction to be given in this case to the words, ‘William Grieve and his heirs;’ and the words, ‘the heir or heirs of the said William Grieve, who shall, at the end of the thirty-eight years, have entered to, and shall then be in possession of the said lands;’ and whether any rent has been received by or for the respondent in this case, under such circumstances as ought to affect his right to succeed in the process of removing, and how far such right may be affected by any claim which the eldest son and heir of line of the said William Grieve may have to the possession of the farm, if the appellant hath not right thereto.
When the cause came back to the Court, it was remitted, in the usual manner, to the Lord Ordinary, who appointed memorials, which were reported, and an interlocutor pronounced (21st November 1805,) adhering to the interlocutors appealed from.
Adam Grieve, the eldest son, had appeared for his interest in the cause, and claimed the benefit of the lease, by likewise raising an action of reduction of the father’s settlement, against his brother, and by bringing a declaratory action against Colonel Cunninghame. These two last processes were conjoined, and the Court (21st November 1805) reduced, decerned, and declared, in terms of the rescissory and declaratory conclusions of the libel against both defenders, and decerned in the removing against William Grieve.
A transaction was now entered into, by which Colonel Cunninghame, who gave his consent to the assignation by the father, in favour of the second son William, receiving him as his tenant, upon which the Court pronounced these interlocutors : In the original process (25th February 1806) it was found, ‘That Adam Grieve, as the eldest son and heir-at-law of the deceased William Grieve, was entitled, by the terms of the lease in question, to succeed as tacksman on the death of his, father, and that he could not be deprived of his said right by any deed executed by his father without consent of the landlord, and so far adhere to the interlocutor under review ; but in respect that the said Colonel Cunninghame the landlord, by his petition, dated 4th December 1805, judicially declared, that he consents to William the second son’s being continued in possession of the farm, and to his being assoilzied from the action brought against him ; they do assoilzie him accordingly, reserving all other questions which may arise upon the terms or effect of the agreement referred to in the said petition.’
And, in the conjoined actions, a similar interlocutor was pronounced, and the defenders assoilzied on the same grounds.
