Scottish Court of Session Decisions

In this case the facts and pleas of the parties, though referring to a different lease, were the same as in the preceding case, with this variation, that the meliorations for which retention was claimed had in part been made daring the existence of a prior lease. Macleod of Harris granted a lease to John Campbell of Strond, for forty-two years, from Whitsunday 1769. It contained this clause:—“Declaring always, that in case it shall be necessary for the said John Campbell and his foresaids to build or repair proper dwelling-houses or office-houses on the said lands, they shall, at the expiry of this tack, be entitled to reasonable meliorations from the said Norman Macleod and his foresaids, or from the incoming tenant, the principal house being always built of stone and lime, and the office-houses of sufficient stone and clay.” Meliorations were made by Campbell during the currency of this lease. Before its expiry, Harris granted a new lease, in 1805, to Kenneth, the son and successor of John Campbell, for thirty years. Under the new lease, the rent was increased from £80, the previous rent, to £200. At Martinmas 1804, the first rent was paid at the increased rate. The new lease contained a clause, by which the proprietor “binds and obliges him and his foresaids, that they, or the incoming tenant, shall, at the expiry of this lease, make payment of such reasonable sum, by way of meliorations, to the said Kenneth Campbell and his foresaids, as may have already been laid out by them, or by the late John Campbell, some time younger of Strond, under the former lease, or that may be laid out by them during the currency hereof, in building or repairing proper dwelling-houses, or office-houses, on the said lands and others, the principal house being always built of stone and lime, and the office-houses of stone and clay.” Under this lease, which was assigned to Mrs Anne Campbell of Strond, farther meliorations were made to a considerable extent. The tenant retained the rents subsequent to Martinmas 1831, as a set off against the meliorations; and Stewart, the judicial factor, raised an action for payment. In addition to the pleas, in which he insisted in the preceding case, he contended that the whole meliorations made under the first lease could now form only a personal claim against the granter and his representatives, and could not affect a purchaser, or heritable creditor. At the time when the last lease began, the meliorations made during the preceding lease formed a distinct debt already contracted by the landlord. Such debt could not be secured, to the prejudice of an heritable creditor, by the tenant's retention of the rents of the estate, any more than any other debt which the landlord might have contracted to the tenant prior to the commencement of the last lease.

Mrs Campbell answered, that the first lease had several years to run when the second was granted, and a largely increased rent was paid under the second; and both leases were in favour of the same tenant. The stipulation in question was fairly inserted by the landlord in the bona fide administration of his estate, and, therefore, it must be good against either a heritable creditor or purchaser.

The Lord Ordinary found, “that the defender is entitled to retention, to the amount of the meliorations specified in the clause of the lease 1805,” and appointed farther procedure for ascertaining the amount of the meliorations.

The judicial factor reclaimed; but the Court refused his reclaiming note, and remitted to the Lord Ordinary to proceed, reserving all questions of expenses.