Scottish Court of Session Decisions

In this action Mr Forbes of Millburn, in Inverness-shire, sought to recover from Dr Forbes, of H. M. Indian Army, and Mrs Tuach, the rent of the farm and lands of Millburn and Seabank. The defenders are the executors of the late William Alves Welsh, Esq. of Millburn, of whom the pursuer is heir; and the pursuer having been abroad for several years at the time of his uncle Mr Welsh's death, was repeatedly written to by them and urged to come home. As he did not return for some time the defenders, who had been residing with Mr Welsh at Millburn house (Mrs Tuach having resided with him for about fourteen years), and who did not intend to occupy the farm and lands as tenants, thought it better to have the land sown than allowed to stand waste. Mr Forbes returned in the end of June, and they all resided together for some time.

The pursuer alleged that he did not acquiesce in the defender's actings, and that he had not taken any part through ignorance of his legal rights.

On 26th May 1869 the Sheriff-Substitute ( Thomson) pronounced an interlocutor, in which he assoilzied the defender, and found the pursuer liable in modified expenses.

On appeal, the Sheriff ( Ivory) pronounced the following interlocutor:—

“ Edinburgh, 21 st July 1869.—The Sheriff having heard parties' procurators, and considered the appeals for the pursuer and defender respectively, with the closed record, proof, and whole process, recalls the interlocutor appealed against, in so far as it finds the pursuer liable only in modified expenses; quod ultra, affirms the interlocutor appealed against: Finds the pursuer liable in the full expenses of process, including the expenses of these appeals; allows an account thereof to be given in, and remits to the Auditor to tax the same and report.

“ Note.—After giving this case the most careful consideration, the Sheriff has arrived at the conclusion that, with the exception of the finding as to modified expenses, the interlocutor of the Sheriff Substitute is right.

“As the pursuer was abroad, it was very natural that Mrs Tuach, who had managed the farm for her uncle, and who had received from him full instructions for the sowing down of the crop in question, should, after her uncle's death in March 1866, continue in the management. But there is not the slightest evidence that she took possession of the farm at this time, or managed it subsequently solely for behoof of herself and Dr Forbes. She gives strong testimony to the contrary. And the pursuer substantially confirms her statement, admitting that, on his going to Millburn on 21st June, Mrs Tuach expressed a desire that he should relieve her at once of the whole affairs—that he told her that she had better go on as she had begun—and that she went on until she left in September, in consequence of his desire.

“On 21st June the pursuer took up his abode at Millburn, consuming a portion of the garden and farm produce, and assisting to some extent in managing the farm, though, finding everything going on well, he left the principal management to Mrs Tuach.

“In a letter to Dr Forbes, dated 29th June 1866 (22 of process), the pursuer writes that he found everything going on well—that Mrs Tuach had had too much to attend to, adding ‘but I must try to assist her, hitherto I have not meddled with anything, for I have not felt very well.’ And in a letter dated 12th August (24 of process), he writes to Dr Forbes, who had just arrived in London from Canada, ‘everything has gone on well during your absence—the hay is long since cut and secured, and the turnips (about 20 acres) are about the best in this neighbourhood. Margaret (Mrs Tuach) has all the credit, as she got them all put in under her own superintendence.’

“All this appears to the Sheriff to be quite inconsistent with the pursuer's contention, that Mrs Tuach, without right or title, took possession of the farm, and managed it solely for the defender's behoof.

“After Dr Forbes' return, in the middle of August, the joint-management appears to have continued, and everything seems to have gone on pleasantly until the quarrel took place in the beginning of September, when Mrs Tuach left.

“The reason for this joint-management appears to the Sheriff to be obvious. The pursuer had not determined until after the quarrel whether he was to collate or not; and they had all continued to manage the farm together until this was arranged, without making any particular inquiry into their respective rights.

“When the quarrel took place, Mrs Tuach advised the pursuer to collate and divide the whole property among the three, but he refused. And Mrs Tuach states that it was not until the 10th September that she began to think whose the cattle were, for up to that time she thought the pursuer would collate.

“The pursuer admits that two days after Mrs Tuach left Dr Forbes told him he might have the crop if he paid for the labour, &c., expended on it.

“The sale of the crop took place on 4th October. The pursuer admits that he took ‘some little charge before the sale.’ He also says that, after or about the time of sale, he had some, talk with Mr Davidson—who, according to the pursuer's own statement, was then acting as agent for him as well as for the defenders—about the land being his from Mr Welsh's death. The pursuer's account of what passed is not the same as that given by Mr Davidson, but the latter states that he told the pursuer that the crop belonged to the executors until they should be paid for their outlay in laying it down. And this quite coincides with the offer of the crop previously made to the pursuer by Dr Forbes.

“The pursuer had no doubt a good reason for declining this offer. He was probably aware that the value of the crop, in consequence of the bad season, would not be sufficient to meet the expense of the outlay incurred in laying it down. This seems, at least, to have been the opinion of many of the practical men who were examined on the subject; while the defenders themselves state that the expenses actually incurred exceeded the price obtained for the crop by £277, 6s. 11d.

“However this may be, it appears to the Sheriff that the only footing on which, in the circumstances, the pursuer could lay claim to the crop was, that he should repay the expense of seed and labour, as offered by Dr Forbes; Sinclair v. Dalrymple, M. 5421.

“On the pursuer declining this offer, the defenders were, it is thought, Entitled to sell the

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crop, with the view of reimbursing themselves for their outlay.

“If this view is sound, it dees not seem to affect the case that the price of the crop was afterwards, on 18th October, included by the defenders in the inventory of the personal estate.

“In regard to expenses, the Sheriff sees no reason in the present case to depart from the usual rule. He is of opinion that the pursuer's claim for £350 of rent—based as it is on the ground that the defenders, without right or title, took possession of and managed the farm for their own behoof—is untenable in the circumstances, and that the pursuer, after all that took place between him and the defenders, ought not to have raised this action on any such footing.”

The pursuer appealed.

Dean of Faculty and Asher for him.

Solicitor-General and Macdonald in answer.

At advising—