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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Dunn v Dunn [1835] CA 13_590 (28 February 1835)
URL: http://www.bailii.org/scot/cases/ScotCS/1835/013SS0590.html
Cite as: [1835] CA 13_590
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SCOTTISH_Shaw_Court_of_Session
Page: 590↓
v.
Subject_Lease—Clause—Writ—Oath of Calumny.—
1. A lease being taken to a party and his heirs-male for nineteen years, and for the lifetime of his second son, held, in a question between the heir-male and the second son, that, under the circumstances, this clause could not be construed as intended to be in favour of the second son for his life after the expiry of the nineteen years. 2. An improbative declaration by the heir-male disclaiming any right on his part not binding on him, but liable to be resiled from. 3. Circumstances in which oath of calumny refused to be required from the pursuer.
The late James Dunn, in 1794, obtained from Mr Russell of Blackhall, a lease of the farm of Shampher, in the county of Kincardine. He died in 1824, his eldest son George having predeceased him, leaving a son, the pursuer, who was bred a shoemaker in the neighbourhood. James, the second son of the old man (the defender), had always lived with him on the farm, and, after his death, continued to possess as tenant, under the general belief of all parties that the lease had been taken to him after his father, On producing the lease, however, as his title to be
The lease had been written by a messenger-at-arms, and while it was signed by the landlord in common form, was only initialed by the old man, the testing clause bearing it to have been subscribed by “both parties,” and it was further subscribed on each page by the defender, though no notice of his subscription was taken in the lease. Immediately on the terms of the lease becoming known to the pursuer, the defender, in October, 1832, obtained from him the following letter, signed by him before witnesses, but neither holograph nor tested:—“I have heard reports concerning my title at law to claim the farm of Shampher, presently possessed by you, I hereby declare before James Leighton, Bowbutts, and Robert Wood, Blackness, that I shall not now, nor ever after, claim any right to Shampher, being perfectly confident in my own mind that you are the right and lawful tenant of said farm; and I remain, dear uncle, yours very affectionately.”
The pursuer, however, alleging that he had signed this in consequence of misrepresentation by the defender, and that it was not binding as relating to heritage, and being neither holograph nor tested, he shortly after raised the present action to have it found that he, as heir-male of old James Dunn, had the only right and title to the lease, and concluding for the defender's removal, and for an accounting.
In defence it was pleaded—
1. That though, from being drawn up by an ignorant person, the lease was not properly expressed, yet the true construction was that the defender should have the farm for his life after the expiry of the term of nineteen years, at which period, he alleged, possession had been ceded to him by his father, and that this construction was confirmed by the understanding of the landlord and all concerned, as well as by the fact of the defender having subscribed the lease.
2. That the pursuer was barred from insisting in this action by his letter given after he was in knowledge of the real nature of the lease.
3. That at all events the defender was not liable to account for past profits, these having been bona fide percepti et consumpti, and, on the other hand, that he was entitled to remuneration for ameliorations made by him on the farm.
The Lord Ordinary pronounced the following interlocutor, adding the subjoined note *:—“Finds, That, as the contract of lease produced,
_________________ Footnote _________________
* “Very few observations are necessary in explanation of this interlocutor.
The terms of the lease are explicit, admitting of no double construction; and the Lord Ordinary has no idea that such a deed of lease, followed by long possession, can be controlled, after the death of the original tenant, by parole evidence of such things as the defender alleges. The idea, indeed, of its having been from the first intended by the father to give up his own right as tenant at the end of the nineteen years, is absurd and incredible. But it is enough, that the deed will not admit of such a construction.
“When the record was made up before Lord Mackenzie, the original contract had not been produced, and the Lord Ordinary only discovered this in the course of the debate. It has now been produced in obedience to his order. Two things appear from it. It is in all respects a probative instrument, and duly tested as between Mr Russell and the late James Dunn, as the only parties to it; except that it is only signed by the initials I. D., instead of the full name of the tenant. This last circumstance seems to be of no consequence in the present question, as the testing clause and the subscription of the witnesses are perfect, and possession of thirty years followed on it in James Dunn's lifetime. But it also appears that, though no other person is mentioned from the beginning to the end of the lease, the name of ‘James Dunn, junior’ is written on every page, and the last subscription is on the back or title part of the paper when folded. At what time this name was so written, or whether it was done in presence of old James Dunn or of Mr Russell, does not appear. But it evidently can have no effect to furnish any defence to the present action.
“Though the Lord Ordinary thinks, that the defence of bona fides is not relevant to defend the party against the demand of accounting, seeing that he really had no title at all, unless it was the title of the pursuer, it is very possible that he may make out such a bona fides as may consist in an actual, though very absurd error, to the effect of letting in his counter claims for meliorations or expenditure fairly made under the influence of such error. The Lord Ordinary leaves all such questions open. He only has a clear opinion, that the case is not within the legal rule of bona fide consumption to prevent all accounting.”
entered into between the late Francis Russell, Esquire, and the late James Dunn, bears, in express terms, that the lands are let ‘to the said James Dunn and his heirs male and subtenants, but expressly excluding all assignees;’ and, as it is admitted on this record, that the pursuer is the eldest son of George Dunn, who was the eldest son of the said James Dunn, and predeceased him; the right in the said lease did, on the death of the said James Dunn, in 1824, devolve on the pursuer as his heir male, and was vested in him without service: Finds, That the import and effect of the destination so expressed in the deed of lease are not altered by the circumstance of the endurance of the right, after the death of the original tenant, having been placed on the life of the defender, his second son, which must be presumed to have been selected for good reasons, for the benefit of the heir male, whoever he might be: Finds, That none of the statements in the record are relevant to control the express and unambiguous terms of the regular contract of lease: Finds, That the pursuer's right to reclaim the benefit of the lease cannot be barred by the improbative letter of the 19th October, 1832, signed by him under the circumstances explained in the record, and departed from soon after that
The defender reclaimed, and craved to have the pursuer's oath of calumny taken. He was allowed as to this to give in a minute, in which he called on the pursuer “to give his oath of calumny, as to whether the facts set forth by him in his summons and condescendence, and also his denials of the defender's statement of facts, are just and true. In particular, whether it be not true, that the pursuer voluntarily signed and addressed the two letters, Numbers 5 and 15 of process, dated October 29, 1835, knowing their import and contents, and was not prevailed on to do so by deception and misrepresentation on the part of the defender; and whether the pursuer is conscious of having a just cause of action against the defender, and whether he authorized, and still authorizes the same to be carried on in his name, for his behoof, and at his expense.”
To this it was objected, that specific facts were not the proper subjects of an oath of calumny, and that the averments on the record having been found by the Lord Ordinary not to be relevant, there could be no oath allowed as to them, so long at least as the finding stood; while, further, as to the letter, the matter being factum proprium et de recenti, it could only be the subject of an oath of verity on reference.
The Court (Feb. 21) refused the minute, and ordered the cause to the roll for advising on the merits.
The Court accordingly adhered.
Solicitors: G. F. Davidson, W.S.— Thomas Baillie, S.S.C.—Agents.