Scottish Court of Session Decisions

By holograph missives of lease, dated February 1832, Mr Mackenzie, then of Ardross, let to the pursuer, Ross, the lands of Inchlumpy upon that estate, “for nine years from Whitsunday 1832, at a yearly rent of £12, out of which he is to be allowed £5 per year, for acting as ground-officer”—the rent being payable at two terms, Whitsunday and Martinmas, beginning at Martinmas 1833 for the crop of that year, &c. Ross entered into possession accordingly, and soon thereafter the estate of Ardross was purchased by the late Duke of Sutherland. His Grace died in 1833, being represented by the defenders, the Duchess-Countess and present Duke of Sutherland. Upon the ground of Ross being illiterate and unable to speak English, the Scotch factor of these parties intimated to him that he would not be continued in the situation of ground-officer at Ardross, and he accordingly ceased discharging its duties after their succession. Ross, however, declaring himself ready to perform these duties, maintained that he was not bound under the lease to make payment to the landlord of more than £7 of yearly rent.

In March 1836, the Duchess-Countess and Duke raised action against Ross before the Sheriff for payment of £23 of arrears of rent, and in June following obtained decree, in respect of no defences. In July, they brought an action of irritancy and removing against him, under Act of Sederunt, 1756, as being two full years' rent in arrear; in which the Sheriff, likewise, in respect of no defences, decerned, in December following, in terms of the libel.

In June 1837, Ross instituted, against the Duchess-Countess and Duke of Sutherland, and George Gunn, their factor, an action of reduction of these decrees, the principal reasons of reduction being—(3d.)“That the said decrees are unjust and illegal, inasmuch as they find the pursuer liable, and decern him to make payment of rent for his said farm for the terms specified in the said summonses and states, at the rate of £12 sterling per annum, without making any deduction therefrom, or giving credit to the pursuer for the sum of £5 sterling per annum for acting as ground-officer, the duties of which situation he did actually discharge, or was, at all events, ready and willing to discharge, in terms of the said missive of lease, the whole prestations of which are binding upon, and effectual against, the said defenders.” (6 th.) That the decree in the removing was unjust and illegal, inasmuch as it declared Ross's lease irritated and decerned him to remove, in terras of the Act of Sederunt, as being two years' rent in arrear, which was contrary to the fact, if the proper deductions were made from the sums concluded for.

In defence it was pleaded that,—the point in dispute being the effect to be given to the stipulation in the missive of lease as to the employment of Ross as ground-officer,—the stipulation was not binding on singular successors, and Ross was not entitled to insist on a deduction of the alleged amount of salary from his rent, in a question with the defenders.

The Lord Ordinary pronounced the following interlocutor, with the subjoined note: ^*—“Finds, that by the missive or minute of lease, bear-

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^* “This case evidently depends entirely on the question whether the pursuer was entitled under his lease to an annual deduction of £5 from his rent as ground-officer on Ardross, so long as he was willing to do the duty. If the view taken of that question in the interlocutor be correct, the tenant's right to set aside the decree of irritancy seems incontestable;—if wrong, the other pleas of the pursuer, founded chiefly on objections to the title of the noble defenders, appear to be quite untenable.

“In considering the construction of the stipulation in the minute of lease on which the pursuer's chief plea is founded, the Lord Ordinary did not think himself entitled to give the least effect to certain statements on the part of the noble defenders, calculated to throw some doubt on the bona fides of the pursuer, and of the preceding proprietor, in entering into this lease. This contract, so long as unreduced, must be viewed as an onerous and binding agreement, available to the tenant in possession. But even on that footing the legal construction due to it is certainly a point not free from difficulty, and may possibly give rise to some difference of opinion.

“The Lord Ordinary's view is, that as a lease is a contract optimæ fidei in Scotland, the whole covenants of it must be construed according to the expressed or presumed meaning of the parties; more especially roust such a document as the present be so interpreted, which is a mere memorandum not expressed with the fullness or precision of a formal contract. Now, the question is, what was a plain rustic, obtaining such a memorandum as the present from his landlord, and in his handwriting, entitled to understand to have been its meaning and object?

“It will be observed, that the stipulation for deduction occurs in the body of the memorandum of lease. It points at the deduction being for a series of years, for it is stated that £5 per year ‘is to be allowed. Its intention in the lease strongly confirms the inference that it was to endure for all the years of it, and the tenant would probably rely that the landlord could not abrogate that clause, and at the same time enforce the other prestations of the lease. Had the tenant been found unfit to act as ground-officer from age, sickness, negligence, or breach of trust, the landlord, of course, might have been justified in declining his services, but nothing of that kind is alleged.

“This stipulation, therefore, seems to have been clearly binding on Mackenzie of Ardross, during the whole years of the lease; and if so, the only other enquiry is, if it be equally binding on the present defenders as singular successors. It is thought that it is on this ground that leases stipulating in whole or in part for services to be performed by the tenant, have long been sustained in Scotland, as exemplified in the case of cottages and pendicles very frequently let for so much money and so many days' shearing, or so many carriages of peat, coal, &c.; and it has never been understood that the landlord could decline these services and exact money. The service of a ground-officer on extensive Highland estates is as necessary and as well recognized as any service performed by tenants under predial contracts.

“It was urged that the present was different from those of ordinary occurrence, because the full rent of £12 was fixed in the outset of the memorandum of lease, from which it was inferred that the deduction of £5 was merely stipulated so long as the landlord chose to employ the tenant. But this does not seem a just inference. It was proper to fix the maximum rent in case the tenant died, or became disabled by bodily infirmity, or was otherwise unfit from breach of duty or negligence to do the duty of ground-officer, that the full rent of the possession might, in that case, be obtained. But this did not show that the landlord was to be entitled to reject the services of the tenant without cause. On the contrary, if the obligation be viewed as in any respect alternative, the option belonged to the tenant on the principle electio est debitoris.”

ing date 6th February, 1832, the farm or possession libelled on was let to the pursuer by Murdo Mackenzie, Esq. the preceding proprietor, in February 1832, some months before he sold the estate of Ardross to the noble defenders: Finds, that the pursuer was then acting as Mackenzie's ground-officer, and that the rent was fixed at £12 yearly, ‘out of which he was to be allowed £5 per year for acting as ground-officer:’ Finds, that by the express terms of this stipulation, a deduction was to be given to the tenant each year from the rent, which he was entitled to claim so long as he was able to do the duty, and was willing to perform it: Finds, that the said stipulation, as relating to an employment usual and necessary on extensive estates, was binding on singular successors, as well as on the granter of the lease, and that the noble defenders were not entitled to found on the lease, and to insist on the stipulation of rent therein contained, without giving the tenant the deduction specially covenanted for his service in the lease: Finds, that if the allowance claimed by the pursuer as ground-officer had been taken into view, the arrear of rent libelled on in the summons of irritancy would have been greatly reduced, and that the decrees libelled on, proceeding in this view on a pluris petitio comparatively of large amount, cannot be supported. Therefore, sustains the 3d and 6th reasons of reduction, and reduces the decrees libelled on, and decerns in terms of the libel: Finds the pursuer entitled to expenses.”

The defenders reclaimed, and contended that the stipulation in question was not a real, but merely a personal condition of the lease, and the contract of lease was in its own nature a personal contract, and only made real by statute for the purpose of securing tenants in their possessions; that if, even in the ease of a clause of retention of rent, for behoof of the tenant or other creditors, that was not binding on the landlord's singular successors, still less ought the present obligation to be binding; that looking to the terms of the missive, and to the character of the contemplated duties (improperly called services) of ground-officer, and to the circumstance that the condition could not have been enforced against the tenant, this was truly a personal obligation, which could not pass against the singular representatives of the granter of the lease.

It was maintained, in support of the interlocutor, that it was competent and of ordinary practice to introduce into a lease services to be paid or performed to the landlord as an equivalent for part, or even the whole of the money rent; that the present case was to be regarded as a contract for services during the lease, along with a money rent, the services being estimated at £5 per annum; that the bargain was in gremio of the lease, and was therefore real in its character and binding on singular successors, like any other stipulation so embodied. ¹

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¹ Lundy v. the Smith of Lundy, July 11, 1610 (M. 15166).