Scottish Court of Session Decisions

This was a petition presented to the Sheriff of Dumbarton and Bute by Agnes Martin or Grozier, wife of and residing with George Grozier, labourer, Kirkintilloch, with consent of the said George Grozier, as administrator and curator at law for the said Agnes Martin or Grozier his wife, and for himself and his own interest; and Allan M'Lean, church-officer, residing at Old Monkland, in the county of Lanark; against George Downie, coal-agent in Kirkintilloch. The petitioners stated that they are proprietors, along with John Martin, “presently in Dunedin, New Zealand, or elsewhere abroad, of a tenement of dwelling-houses, offices, and grounds attached, in Eastside, Kirkintilloch: That the respondent, sometime before the term of Whitsunday 1864, took in lease from the petitioners, or others representing them, a dwelling-house, consisting of a room and kitchen, milk-house and byre, and a piece of garden ground, extending to one acre and one-half acre or thereby, forming a portion of the foresaid tenement, offices, and ground, and situated in Eastside, Kirkintilloch, for five years from and after said term of Whitsunday 1864, and, under the said female petitioner and her husband, occupied said premises under said set until Whitsunday 1869: That the respondent was on the 13th day of February 1869 duly and lawfully warned to flit and remove himself, ‘his wife, bairns, dependents, and others, and his goods and gear, furth and from the said dwelling-house and pertinents thereof, let to him as aforesaid, conform to execution of warning under the hands of Henry Crossley, officer of Court, dated said 13th February 1869, herewith produced;’ but notwithstanding thereof, and of his said lease or set having expired on the 28th day of May 1869, the respondent illegally retains possession, and refuses to remove therefrom.” The prayer of the petition was for removal of the respondent.

The respondent pleaded—The petitioners not being the sole proprietors of the subjects in question, and having no right or title from the other interested proprietors to sue this action, and the property being still undivided among those beneficially interested, the same is incompetent.

The Sheriff-Substitute ( Steele), after a proof, pronounced an interlocutor in the following terms:—“Finds that the warning given to the defender is sufficient to support the present action, and therefore repels the defence stated to the action on that ground: Finds that the pursuers stand in the position of pro indiviso proprietors of the subjects in question, as appears from the title produced by them, and that another party who has a share of said property does not appear as a pursuer: Finds that a pro indiviso proprietor is not entitled to pursue an action of removing unless he have the concurrence of the other parties interested in the property; Bruce v. Hunter and Leisk, 16th November 1808, F.C.: Finds that the defender's lease is supported and confirmed by the evidence of several witnesses adduced by him: Finds that the defender has a valid title of possession of the subjects in question; while, on the other hand, the pursuers have established no right to interfere with that possession under the present action: Therefore sustains the defences, and assoilzies the defender from the conclusions of the action; finds the pursuers liable in expenses,” &c.

The Sheriff ( Hunter) affirmed this judgment and added the following note:—This case has been well argued by both parties, and by the pursuers with considerable ingenuity; but the Sheriff has seen no reason to disturb the interlocutor of the Sheriff-Substitute.

“The process is one of ejection and removing from certain subjects belonging to pro indiviso proprietors, all of whom are confessedly not parties to the suit. Throughout the pleadings and the evidence it is admitted that John Martin, one of the pro indiviso proprietors, is not a party. This is obvious from the petition itself, and it pervades the other pleadings and the evidence. In the petition it is said that certain of the pursuers are proprietors along with John Martin, presently in Otago, New Zealand, or elsewhere abroad. In the condescendence it is set forth that certain of the pursuers are proprietors along with John Martin, presently in Otago, New Zealand, or elsewhere abroad. In the defences it is stated that John Martin went abroad about 26 years ago, and of him nothing has been heard for many years. In the evidence it is said that John went abroad many years ago, ‘and is still alive for anything I know,’ and, in another part of the evidence, there is a similar statement. Throughout the pleadings and the evidence there is no statement or indication that John is dead, or reported or believed to be dead. John's interest in the property is material, both as one of the original disponees, and as having succeeded to the share of his deceased sister Margaret. The property is confessedly held in cumulo by the pro indiviso proprietors, there having been no division of it.

Now, the rule of law is fixed to be that a pro indiviso proprietor cannot, as long as the land or other subject is undervalued (undivided), remove or eject without the consent of all the other proprietors. This is deemed to have been conclusively settled by the decision in the case of Bruce v. Hunter and Leask, 16th November 1808. The soundness of the rule thus established has never been doubted, and the pursuers admit that such is the law.

But, while thus admitting the rule of law, they endeavour to take their case out of its operation. In this attempt they have been unsuccessful.

Page: 564↓

Throughout the argument in the reclaiming petition the absence of John Martin is mentioned repeatedly and prominently. It is obvious that the pursuers are constrained to recognise the decisive effect of John being no party to the suit. Although not so said, it is easy to see that they desire the allegation of his continued absence should be dealt with as equivalent to proof of his death. But it is matter of legal notoriety that the presumption of law is in favour of life, and that, although a person has been for many years absent and not heard of, it is to be held that he is still in life, unless there be a proof of such facts and circumstances as, by creating an irresistible conviction of his death, rebuts the presumption that he is alive. Here, as already stated, there is no proof of John's death, nor even an allegation of it. There exists a long series of decisions that the absence of a person, and ignorance of him for space of time longer than that which is here presented, is insufficient to elide the presumption of life. In no case could the mere allegation of absence and ignorance be even dealt with by a court of law as eliding the presumption. There must be proof, creating at least a high probability that he has ceased to exist. Thus it must be held here that John Martin is still alive, and, therefore that, he not being a party to the suit, there is no valid instance.

The case of Johnston and Others v. Crauford, 3rd July 1855, relied on by the pursuers, is not in point. It was not an action of ejection or removing, or to any effect as between landlord and tenant. It was an action of declarator at the instance of a pro indiviso proprietor for having his right declared, and for removal of certain erections constructed upon his property by certain parties who had formerly acknowledged him as their landlord, but now declined to do so. The Lord President said that the rule established by the cases cited, those of Bruce and others, is not applicable, because this is not an action of removing in the sense of any of those cases. It is more of the nature of a declaratory action, and that he could not understand why a party should not be entitled to protect his own property, and, in this doctrine enforced by details, the other judges concurred.

As the Sheriff deems that the ratio that, by John Martin being no party, there is no valid instance, he holds it to be surplusage to discuss the minor points relied on by the pursuer, and that the only effect of such a discussion would be to obscure the true gist of the case. Whether, if the question were raised in a proper action, and before the proper court, the lease would be held to be valid or invalid, expired or existing, it is obvious that such questions are incompetent here, where the gist necessarily consists in there being or not being a valid instance.”

The petitioner appealed.

Guthrie Smith and Lang for them.

Macdonald for the respondent.