Scottish Court of Session Decisions

Subject_1Reparation
Subject_2Warrandice
Subject_3Eviction
Subject_4Lease. Headnote:

A person having granted a sub-lease with absolute warrandice which was found by the Court to be ultra vires of the granter, and the lands having been evicted from the granter, held that the latter had a relevant claim of damage against the granter's representatives founded on the warrandice.

The trustees of the deceased Alexander Macalister of Strathaird, in accordance with instructions in his trust — settlement, executed in 1834 a deed of lease by which they let “to Jessy Macalister,” his daughter, and Duncan Macalister, her husband, “and the longest liver of them, whom failing to their son Norman Macalister, and his heirs and assignees, the farm and lands of Glasnakill, as presently possessed by the said Duncan Macalister, and that for the space of 28 years, from and after the term of Whitsunday 1832,” as to the houses and grass, and the separation of the crop as to the arable ground. The rent payable was £10 per annum.

On 12th December 1842 Duncan Macalister (his wife being dead) executed a deed of subtack in favour of his son, Archibald Macalister, by which he let to the said Archibald Macalister and his heirs “all and whole the farm and lands of Glasnakill, as presently possessed by the said Duncan Macalister, and that for all the days, years, and space of twenty-eight years, being the remaining years still to run of the tack of the said subjects aftermentioned, under which the said Duncan Macalister holds and possesses the same, from and after the said Archibald Macalister's entry to the premises, which is hereby declared to have commenced at the term of Whitsunday last 1842 as to the houses, grass, and pasturage, and at the separation of the crop of that year from the ground as to the arable ground.” After the death of Duncan Macalister in 1854 his son, Norman Macalister, in whose favour, failing his father and mother, Strathaird's trustees had executed the original lease, took proceedings against his brother Archibald, for the purpose of having it found that this subtack was ultra vires of their father, who had only, as he contended, a liferent interest in the lease. It was maintained, on the other hand, that the words “whom failing,” in the lease, left in the person of Duncan Macalister an unqualified right of tenancy in the first instance, and that Norman Macalister, who was only introduced failing his father and mother, was either a mere conditional institute, who only took if his father and mother had not taken, or a substitute who succeeded only if the right was not disponed away by the primary holder. After a long litigation, the Second Division, on 22d February 1859, held that the subtack was ultra vires of Duncan Macalister, so far as extending beyond his own lifetime, and so brought to a period the right of sub-tenancy in Archibald Macalister ( 21 D. 560).

The representatives of Archibald now insist against the representatives of Duncan, his father, for payment of the loss and damage incurred through this eviction of the subjects—holding an obligation of warrandice for the full space ot twenty-eight years to have been incurred by Duncan as granter of the subtack.

The Lord Ordinary (Kinloch), held that the subtack contained a proper obligation of warrandice for the whole space of twenty-eight years for which the right bears to be granted, and that there is a relevant claim of damage under the obligation,

Page: 194↓

leaving it for the jury to say whether any damage has been sustained.

To-day the Court adhered.