Scottish Court of Session Decisions

James Finlay and James Granger were infeft as joint proprietors of an heritable subject in Airdrie, over which John Robertson held an heritable bond for £200. Robertson, after having entered into possession and management of the subjects, conveyed his security to Matthew Clelland; and not having then completed the conveyance of the bond in his favour, he addressed, on 14th May, 1827, this letter to Clelland. “ sir,—I hereby authorize you to act upon the warning of removal against William Granger, and all the tenants at present possessing the house at Airdrie, that I hold a bond for £200 over, which bond I have assigned over to the said Matthew Clelland, and all right that I could act upon in the management of the property.”

Clelland let the premises to Hugh M'Kay, in doing which he acted under the express written mandate of James Finlay, one of the joint proprietors infeft in the subject, as well as under the mandate of Robertson. M‘Kay entered into possession, and was in possession at the time when the proceedings after mentioned took place.

On the 14th of May, 1827, Richard Gower, glue manufacturer in Airdrie, presented a petition to the Sheriff of Lanarkshire against M‘Kay and Clelland, setting forth that he alone was entitled to possess the premises let to M‘Kay, from and after Whitsunday 1827, in virtue of a lease for seven years, granted by William Granger, the father of James Granger, one of the joint proprietors, who, he alleged, was in the practice of letting the subjects; but this was denied. The lease founded on was an unstamped missive offer by William Granger, and the offer was not signed as accepted by Gower; but he alleged in support of it, that he had performed some acts of possession, such as delivering up the garden, which formed part of the subjects set, and planting vegetables in it, and depositing his working utensils in the house. And he contended, that at least the lease was good for one year.

The defenders pleaded, that William Granger had no title to let the premises even for a single year; that the missive of lease was improbative; and that no possession whatever had followed on it, as the date of the petition to the Sheriff was prior to the term of Whitsunday, at which the lease purported to commence. The Sheriff assoilzied from the action, and Gower raised a reduction of the decree. The Lord Ordinary: “In respect, 1. That no title in the person of the pursuer's author, William Granger, was produced or referred to in the inferior court. 2. That, in fact, it appears that he had no title in the property in question. 3. That the alleged missive of lease produced by the pursuer, bearing to be for seven years from 26th May, 1827, does not prove its own date, is not stamped, and bears no acceptance. 4. That the pursuer neither had nor could have possession under that lease, the term of entry not having arrived at the date of his petition to the Sheriff, on the 14th May, 1827, and the possession alleged by him being irrelevant and insufficient. 5. That the premises were let to the defender, Hugh M‘Kay, by the other defender, Matthew Clelland, under the express written mandate of James Finlay, who stood infeft in the property jointly with James Granger, and also of John Robertson, Esq., from whom Clelland had acquired right to the heritable security over the property. And, 6. That it was averred and not denied on the record in the inferior court, that the said Hugh M‘Kay was in actual possession of the premises before the date of the petition to the Sheriff, sustained the defences; assoilzied the defenders, and decerned; and found expenses due.” ^*

Gower reclaimed.