Scottish Court of Session Decisions

By letter of 25th January, 1827, Dr James Wishart, acting on behalf, of the advocator, Davidson of Tulloch, made offer to Mr J. Cameron, agent for the late James Scott, accountant in Edinburgh, to whom the estate of Dundonnell had been conveyed, as trustee for behoof of the creditors of the now deceased M'Kenzie, the proprietor, of a rent of £160 for the mains, mansion-house, and shooting of Dundonnell, on a lease of thirteen years from Whitsunday, 1827, subject to a break at the option of the tenant at Whitsunday, 1834, intimation being given by him six months previous to that term. By letter of 15th March, 1827, Cameron accepted of this offer, subject to the following condition;—“That as you require a break, optional to the tenant, at Whitsunday, 1834, there will be at that period a break also optional to the proprietor, to be exercised in the event only, however, of his wishing to take up his residence there, and to resume possession himself.” No mention was made of assignees and sub-tenants.

Upon these missives Dr Wishart, on behalf of Davidson, was put in possession by Cameron of the whole premises, at the subsequent term of Whitsunday; while a correspondence was carried on between these parties, both prior to and after that term, as to the adjustment of a regular lease professing to be in implement of the missives. No regular lease, however, was agreed to, an extended lease being transmitted on the part of Mackenzie's trustee to Davidson, who did not sign it, but at the same time continued his possession. The lease (which remained with Mr Davidson or his agent) contained the provision as to a break above-mentioned, and a clause excluding assignees and sub-tenants, but along with it was sent a letter (July 6, 1827) from the trustee's partner in business (Turner) to Mr Davidson's agent, in the following terms;—“I am authorized to state, that although the lease bears an exclusion of assignees and sub-tenants, yet there is no intention, should circumstances render a temporary subset desirable for Mr Davidson, to exercise that power in a capricious or unreasonable way, but quite otherwise; that it has been introduced merely in reference to the unusual description of the subjects let—a furnished house, and usually the residence of a family—where there is a more than ordinary anxiety to secure an eligible tenant; and that if a difference of opinion should arise to any proposed sub-tenant, it will readily be referred to any respectable country gentleman in that neighbourhood—say to Mr Mackenzie of Applecross.” After Davidson had been some years in possession of the subjects of the lease, he transferred his interest therein, for the remainder of the lease, by assignation or sub-lease (March, 1832), to two other parties, whose entry should be at Whitsunday, 1832; at which term these parties accordingly entered into possession of the subjects.

In October, 1833, the respondent, Girvan, accountant in Edinburgh, who had become Mackenzie of Dundonnell's trustee on the death of Scott, in 1830, alleging that he was entitled to use the option of a break provided to the proprietor of Dundonnell by the missive of 15th March, 1827, gave intimation of removal to Davidson and to the sub-tenants. In March following, as “trustee nominated and appointed by the creditors of the late Kenneth Mackenzie of Dundonnell, and as such heritable proprietor of the subjects,” &c., he brought a process of removing before the Sheriff of Ross-shire against Davidson and Wishart, founding upon the regular lease, and stating his intention to avail himself of the option given to the proprietor, and enter himself into the natural possession of the subjects at Whitsunday, 1834. Of the same date he brought an action with similar conclusions, for removing against the sub-tenants, but libelling on the missives above-mentioned as well as on the extended lease, and alleging that they had no right, under the assignation or sub-lease from Davidson, assignees and sub-tenants being excluded by the lease.

In defence against these actions, it was, inter alia, pleaded, 1st, That supposing Girvan entitled to found upon the regular lease, on which alone his action against Davidson and Wishart was libelled, the option of a break at Whitsunday, 1834, was personal to the present Mackenzie of Dundonnell, and even in its exercise by him was limited to the case of his adopting the resolution of resuming the natural possession of the subjects let; and, at all events, this option could not be exercised by Girvan, who was only trustee for the creditors of the late Mackenzie of Dundonnell, and not proprietor of the estate, and who had besides not adopted, in the true sense of the provision, the resolution of resuming the natural possession of the subjects: 2dly, That in regard to the right of the subtenants, Turner's letter of 6th July, 1827, must be held to have qualified and been a condition of the extended lease which it accompanied, and that as the right of sub-letting had not been unreasonably exercised, the assignation by Davidson was unchallengeable, and the more so, as the sub-tenant's possession had been recognised by the trustee.

Thereafter the Sheriff conjoined the actions, and on the ground of the two stipulations in the bargain of lease, as to the break in favour of the tenant and that in favour of the proprietor being properly counterparts of each other, and holding the trustee entitled to exercise the option provided to the proprietor, repelled the defences; but, as possession had in the mean-time been ceded by the defenders to the actual proprietor, he found it unnecessary to pronounce any decree of removing against them. The Sheriff at the same time found the defenders liable in expenses, but in respect that the pleas maintained by the pursuer might competently have been discussed in one action, to which all the defenders might have been cited, he found the expenses subject to modification to such a sum as might have been incurred if one action only had been raised.

Of this interlocutor, Davidson and the other defenders in the actions of removing, brought an advocation, in which the Lord Ordinary pronounced the following interlocutor, with the subjoined note;—“Advocates the cause, alters the interlocutors of the Sheriff complained of, sustains the defences of both sets of defenders in the original conjoined processes, assoilzies them from all the conclusions of the said actions, and decerns: and Finds them entitled to their expenses, both in this Court and before the Sheriff.” ^*

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* “In the leading question with the principal tenant, the Lord Ordinary cannot possibly adopt the views of the Sheriff, who considers the break in favour of the landlord to be equally absolute and unconditional as that in favour of the tenant. Whether the lease or the original missives be looked to, such a construction seems quite inadmissible; the landlor's right to terminate the lease in 1834 being distinctly conditioned upon the fact of the proprietor having given six months' previous notice that he himself intended to enter into the natural possession of the subject at Whitsunday in that year; which, as the subject was a furnished mansion-house with pertinents, could mean nothing else (as is fully expressed indeed in the missives) than that he was then to take up his personal residence in that house. Now, on this view, the Lord Ordinary is satisfied,—First, That in the admitted circumstances of the case, the respondent had no right to give the notice or intimation which he did give in October, 1833; and that in fact the condition never existed, upon which the landlord's right to avail himself of the break altogether depended; and Second, That, even if the condition had existed, the intimation actually given, and the summons actually raised, are so expressed, and so inconsistent with each other, that the action cannot possibly be sustained.

“It is needless, however, to enter here into the grounds of this opinion, farther than to observe, that it is quite manifest that, both in the missives and the lease, the proprietor is contradistinguished from the trustee, who was the immediate party to those engagements; and that it was not, and could not be, the personal residence of the trustee, but of the actual proprietor, for which the complainers were thus taken bound to make way. This indeed was substantially conceded when the case was argued; and it was very candidly admitted, that, when the lease was entered into in 1827, all parties anticipated that the trust would be at an end, and the property in the hands of the true owner, long before Whitsunday, 1834. In these circumstances, it is enough to say, that when the intimation was given by the trustee in October, 1833, it was so given without any authority from the then proprietor, and it is not now pretended that there was then, or at any after time, any intention, on the part of that individual, to take up his residence at Dundonnell. This alone, it is conceived, made the intimation, and all that followed upon it, altogether incompetent and unavailing. But, even if this were doubtful, it is thought to be plain that the summons, which founds expressly and exclusively on the alleged notice of an intention, on the part of the trustee himself, to take up his residence at the mansion-house, at Whitsunday, 1834, proceeds, in the first place on an averment now confessed to be incorrect; and secondly, is in no degree supported by the only notice actually given, though that too is now admitted to be equally erroneous in its assumption. There never was any ground, in short, for, the action of removing; and if there had been any ground, the summons is incompetently laid, and its assumption not only unsupported but contradicted, by the only document produced to sustain it.

“There is a subordinate question as to the sub-tenants. But if the principal tenant is not liable to be removed, it is too critical to inquire whether their possession was at first upon a proper title or not. They got a regular sub-lease, at all events, before any decreet was obtained against them, and were entitled, the Lord Ordinary conceives, to purge, in this way, any defect that might have existed in the form or shape of their title when the action was raised. He takes it to be quite clear, that Mr Turner's letter gives a sufficient right to sub-set to a respectable tenant, or to any one whom Mr Mackenzie of Applecross should pronounce liable to no objection. The rank and station of the gentlemen in question seem to render any reference of that kind unnecessary, and as the pursuer never rested his case, in any degree, on their being personally objectionable, and never proposed any reference to Applecross, it is apprehended that he is now precluded from this ground of pleading.

“As the defenders voluntarily ceded possession in 1835, the only question now at issue is as to expenses only. It might have been more becoming, if the actions had been allowed to drop quietly, when it was first arranged that the possession was to be given up. But since the pursuer insisted on going on, and even threatened to proceed for violent profits, he must take the consequences of his pertinacity.”

Girvan reclaimed.