Scottish Court of Session Decisions

By disposition and deed of entail, dated 20th January 1789, John Christie, Esq., executed an entail of the lands of Baberton; and this deed was recorded on the 11th July following. By this deed of entail it was provided that “it shall not be lawful to, nor in the power of, the said Captain Alexander Christie or other heirs of tailzie, nor any of them, to set tacks or rentals of any part of the said tailzied estate for a longer space than twenty-one years, and that no heir of tailzie shall have power to set any tacks with a diminution of the rental, except in case of necessity, in which case it shall be lawful to set tacks for any space not exceeding seven years at the best and highest rent which can be got at the time, and without taking any grassum or entry-money.”

In 1861 the late Alexander Christie succeeded to Baberton; but being of facile mind, granted, in December 1864, a bond of interdiction in favour of John Sibbald Ritchie, accountant in Edinburgh, and David Currie, merchant there, by which he bound, obliged, and interdicted himself to them not to set tacks or rentals of his lands and heritages without the special advice and consent of the persons therein before named had thereto in writing, and declared that all such tacks or other deeds subscribed by him without their consent should be void and null. This bond was never published nor registered; but the pursuer alleged that it was acted upon.

On 5th December 1865 the late Mr Christie, without the consent and concurrence of his interdictors, let to the defender, with whom he then resided, certain parks at a rent of £65 for nineteen years; and, on 26th November 1867, certain other parks at a rent of £25 for nineteen years.

Mr Christie died on 17th August 1868; and the pursuer, as heir of entail now in possession, sought to have these leases reduced, alleging that the rents were unfair and illusory, and to the lesion of Mr Christie and himself, and that the leases had been granted without the consent of the interdictors.

The defender maintained that by the Roseberry Act he was entitled to grant these leases, as the rent was a fair rent. This statute enacts “that, notwithstanding any prohibitory, irritant, and resolutive clauses contained in any entails already made and established, or which may hereafter be made and established, pursuant to the directions of the said Act, passed in the Parliament of Scotland in the year 1685, it shall be lawful for the respective heirs of entail in possession to grant tacks of any part of the lands, estate, or heritages therein contained, for the fair rent of such lands or heritages at the period of letting, either by public roup or private bargain, and notwithstanding any prohibition against diminution of the rental, for any period not exceeding twenty-one years.” The defender admitted that the bond of interdiction was granted, but asserted that it had never been published nor registered in consequence of Mr Christie's health and habits having gradually improved. He also alleged that the leases were onerous and rational, and that he had expended about £2000 in building, draining, manuring, &c.

A proof having been ordered, various witnesses were examined as to the value of the lands. Mr Bruce, civil engineer and land valuator in Edinburgh, valued the fields at about £136; while other valuators assigned higher values, the highest being about £163. Mr Dickson of Saughton Mains, who valued the fields for the defender, considered about £100 as a proper rental. Laurie, the last tenant, valued them at £141, and said he had only been induced to renounce his lease, while there were six years of it to run, because of the unpleasant treatment he met with from the defender. One or two witnesses spoke to the poverty of the land at the time Laurie gave up his lease; one of them, Mr Brownlee, in consequence considering £90 a fair rental. The defender, who is a butcher and grazier at Juniper Green, stated he had put great quantities of manure on the land, and was thereby some hundreds of pounds out of pocket, and that the leases were rational, and carefully gone about.

The Lord Ordinary ( Barcaple) found that the rents for which the leases sought to be reduced

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were granted were unfair rents, and therefore reduced the leases. He added the following

“ Note.—The Lord Ordinary has had difficulty in coming to a satisfactory conclusion in this case. The evidence is very conflicting. Mr Dickson, the most important witness for the defender, values the arable land at £97, 15s. 6d., and the strip which was cleared of trees for pasture at £5, 10s., making in all, £103, 5s. 6d. This is his valuation of the lands in their present state, and the Lord Ordinary does not doubt that they have been more or less improved by the defender, though to what extent does not clearly appear. He is inclined to think that the evidence on both sides in regard to that matter is exaggerated. Mr Dickson's opinion is materially confirmed by the witnesses Kidd and Stuart, though neither of them appear to have made an examination of the lands for the purpose of putting a value upon them. If the case had stood upon this evidence, with the fact that the former lease was renounced by the tenant of the adjoining farm, the Lord Ordinary would not have held that the new leases were not let for a fair rent. But there is a strong body of evidence on the other side, putting the value of the lands at a much higher sum than that at which they are valued by Mr Dickson, and at fully as much as the rent at which they were held by Laurie, the late tenant. In such a conflict of evidence the Lord Ordinary cannot throw out of view the fact that they were taken by Laurie in 1852 for 19 years at a rent of £130, being £40 more than the rent under the leases in question. He is not satisfied on the evidence that the former lease was renounced on account of the lands being over-rented.

“In estimating the value of the pursuer's evidence as to the fair rent of the lands, the Lord Ordinary has not taken into account the views brought forward by the witnesses as to a rental to be derived by letting the lands from year to year as grass parks. Throwing that element entirely out of view, and having regard to the evidence of Mr Dickson and the other witnesses for the defender, and to the probable difficulty of getting a suitable tenant for such a subject, without houses of any kind, he would have been disposed to hold a rent materially lower than that at which the former tenant held the lands to have been a fair rent, in terms of the statute. But looking to the whole evidence, he does not think there is ground for putting it so low as £90.”

The defender reclaimed.