Scottish Court of Session Decisions

John Waterson became tenant of the Garth Farm of Airntully under a lease for nineteen years from Martinmas 1870, granted by the late Sir William Drummond Stewart, Bart., of Murthly, Grandtully, and Strathbraan. The lease was never signed, but a draft of it was adjusted, and in the renunciation afterwards mentioned that draft was treated, and the parties agreed that it should be held, as a duly settled lease. This draft lease contained the following clause:—“The proprietor binds and obliges himself to put the whole buildings, fences, hedges, and ditches on the farm in a proper state of repair.”

Sir William Drummond Stewart died on or about the 28th of April 1871, and was succeeded as heir of entail in the estates of Murthly, Grandtully, and Strathbraan, of which the farm of Garth of Airntully forms a part, by Sir Archibald Douglas Stewart. The latter recognised the lease and took payment of the rent under it from the date of his succession.

In March 1879 Waterson fell into arrear with his rent, and sequestration was applied for against him. After some negotiation it was arranged that he should renounce his lease and right in the lands in favour of Sir Archibald Douglas Stewart as at the term of Martinmas 1879, and a deed of renunciation was accordingly prepared and executed of date 30th March 1879. The said deed, after narrating the holograph offer, acceptance, and draft lease, proceeded in the following terms:—“And now seeing that I find I have not capital to enable me to continue the profitable possession of said farm, and have requested Sir Archibald Douglas Stewart of Grandtully, Baronet, now heir of entail in possession of said lands and others, to take said farm off my hands, and have proposed to him that I should renounce all right of possession competent to me under the said holograph offer and acceptance and draft tack as from the term of Martinmas next, 1879, and that the present year 1879 should in all respects be treated as the last year of the tack, and that all the provisions and stipulations therein contained applicable to the year of expiry should apply to it as if the said tack had come to its natural termination, and that the said request and proposal have been acceded to by the said Sir Archibald Douglas Stewart: Therefore I have renounced and over-given, as I hereby renounce, simpliciter upgive and overgive, to and in favour of the said Sir Archibald Douglas Stewart, his heirs and successors, the said tack, and my possession of the lands and others foresaid in virtue thereof, or in virtue of the said holograph offer and acceptance,

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and all claim, interest, or advantage I could have or pretend therein, with the whole clauses and obligements contained therein, and all that has followed or may be competent to follow thereupon, for ever, from and after the term of Martinmas 1879.” It was further provided “that the said Archibald Douglas Stewart by his acceptance hereof does discharge me of the whole prestations incumbent on me by the said draft tack and holograph offer and acceptance, for the period thereof still unexpired subsequent to the said term of Martinmas 1879.”

On 9th June 1879 Waterson, whose creditors were pressing for payment of their debts, granted a trust-deed for their behoof in favour of George Kyd, auctioneer in Perth. On 6th and 9th December a submission was entered into between Mr Kyd, as trustee foresaid, and Sir Archibald Douglas Stewart and Mr Joseph Gold, farmer at Home Farm, Murthly, in these terms:—“Considering that by his tack of the said farm the said John Waterson bound and obliged himself to maintain the whole buildings, fences, hedges, and ditches on said farm in a good state during the currency of said tack, and to leave them so at its expiry, and that by the renunciation of said tack, dated 30th May 1879, the said John Waterson bound and obliged himself to implement and fulfil the whole obligations and conditions by said tack made incumbent upon him in the last year of his possession of said farm; and now seeing that it is right and proper that a person of skill should be appointed to inspect said buildings and others, do hereby nominate and appoint Joseph Gold, farmer at Home Farm, Murthly, as sole arbiter and valuator, to fix and determine whether the said buildings, fences, hedges, and ditches on the said Garth Farm of Airntully have been left by the outgoing tenant in a good state as provided by said tack; and whether any stone dykes upon said farm have been erected by the said John Waterson at his own expense which are a permanent improvement upon and enhance the present value of said farm—and to state what sum the landlord might fairly allow the said George Kyd, as trustee fore-said, in respect thereof.”

Under this award the arbiter found Sir Archibald Douglas Stewart entitled to be paid by the trustee the sum of £48, 5s. 8d., and for this sum he was ranked on the bankrupt's estate accordingly, and received a dividend of 10s. 2 1 2d. per £ on his claim.

Waterson raised the present action against Sir Archibald Douglas Stewart, as heir in possession of the entailed estates of which his farm formed a part, and also against Franc Nichols Steuart, as executor and universal disponee of the deceased Sir William Drummond Stewart, for the sum of £800 sterling, as damages for losses he had suffered in consequence of the non-fulfilment of the obligations undertaken by Sir William Drummond Stewart to put the farm-holdings, &c., into proper repair. He averred that he had lost a number of valuable horses and cattle owing to the ruinous state of the buildings, and the unwholesome straw (rendered so by exposure to the weather) which they had to eat. His men, he averred, frequently went through the floor when carrying grain, and he had been himself compelled to make repairs to the stable-doors, fences, and ditches.

He pleaded—“(1) In respect of the obligations contained in the pursuer's lease of the farm of Garth of Airntully, the pursuer was from and after the term of Martinmas 1870, and during all the years that his said lease continued in force, entitled to have the buildings, fences, hedges, and ditches on the farm put in a proper state of repair. (2) The defender Sir Archibald Douglas Stewart was liable to make reparation to the pursuer for the loss which he sustained in consequence of the said repairs not having been made as stipulated in the contract—(1st) in respect of the provisions of the said lease; (2d) in respect that he adopted and homologated the said lease and exacted rent under it; (3d) in respect that Sir William Drummond Stewart died soon after the commencement of the lease; and (4th) in respect that the repairs in question were only necessary repairs proper to be made for the due management of the estate, and incumbent upon the heir of entail in possession to make. (3) The defender Franc Nichols Steuart was also liable in damages as above set forth, in respect that the obligation to make the said repairs was binding on the late Sir William Drummond Stewart and his heirs and successors, and in respect that the said Franc Nichols Steuart was the representative of the said Sir William Drummond Stewart. (4) In the circumstances of the case the pursuer was justified in raising this action, as he could not otherwise obtain the damages to which he was entitled, and in order that the defenders might determine among themselves which (if not both) of them was liable in the said damages.”

The defenders, on the other hand, averred that the pursuer had made no application to have the obligation in the lease implemented, and had regularly paid his rent till the date of sequestration, and took receipts therefor without reserving any claim for damages upon any ground whatever.

The defender Sir Archibald Stewart pleaded—“(2) The pursuer's statements were irrelevant, and insufficient to support the conclusions of the summons. (3) The defender having come under no obligation to the pursuer to put the said farm buildings, &c., in repair, was entitled to absolvitor. (4) If any obligation was constituted against Sir William Drummond Stewart, the same fell to be met by his executor and universal legatory, and the present defender was entitled to be assoilzied with expenses. (5) The pursuer having made no timeous intimation or complaint as to the claims now raised, et separatim these claims being unfounded in fact, the defender should be assoilzied. (6) The pursuer having by said renunciation renounced all claims competent to him under the said offer and acceptance and draft lease, the defender should be assoilzied. (7) The pursuer having paid rent and taken receipts without any reservation of the claims now made, must be held to have passed therefrom, and the defender was entitled to absolvitor.”

The other defender Nichols Steuart adopted similar pleas-in-law, with the addition of one to the effect that no binding obligation having been constituted against Sir William Drummond Stewart to repair the farm, and separatim such obligation, if constituted, falling to be met by his successor in the lands of Murthly, he was entitled to absolvitor.

The Lord Ordinary (Fraser) assoilzied the defenders from the action. He delivered the following opinion on the case;—“The pursuer

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became tenant of the Garth Farm of Airnully under a lease for nineteen years from Martinmas 1870 granted by the late Sir William Drummond Stewart. The lease was never signed, but a draft of it was adjusted, and in the renunciation afterwards mentioned that draft was treated, and the parties agreed that it should be held, as a duly settled lease. This draft lease contained a clause in the following terms:—‘The proprietor binds and obliges himself to put the whole buildings, fences, hedges, and ditches on the farm in a proper state of repair.’ The pursuer avers that this obligation upon the part of the landlord was never implemented, and that in consequence he suffered great loss and damage (which he estimates at £800), and the details of which he has set forth upon the record.

This claim cannot now be competently made by the pursuer, for on the 30th of May 1879 he entered into an agreement with Sir Archibald Douglas Stewart, who had succeeded the granter of the lease as heir to the estate, whereby, on the narrative that he (the pursuer) had not capital to enable him to continue the profitable possession of the farm, he had requested the landlord to take the farm off his hands, and had proposed to him that he should renounce all right of possession under the lease, and that the year 1879 should be treated as the last year of the tack; and that this request and proposal had been acceded to by the landlord. The deed then proceeds as follows:—‘Therefore I have renounced and overgiven, as I hereby renounce, simpliciter upgive and overgive, to and in favour of the said Sir Archibald Douglas Stewart, his heirs and successors, the said tack, and my possession of the lands and others foresaid in virtue thereof, or in virtue of the said holograph offer and acceptance, and all claim, interest, or advantage I could have or pretend therein, with the whole clauses and obligements therein contained, and all that has followed or may be competent to follow thereupon, for ever, from and after the term of Martinmas 1879.’

No reservation is here made of any claim of damages for breach of contract, and it is difficult to see how such a claim can now be made in the absence of such reservation when the tenant expressly renounces all claims he could have or pretend to under the lease, and ‘the whole clauses and obligements therein contained.’ It is upon one of these clauses that this action of damages is rested, and the words employed would have no meaning if this action would still be competent. There is a decision shortly reported very similar in its circumstances to the present, where the Court held that after a renunciation of the lease the tenant could not bring an action for the value of meliorations made by him which would have otherwise been claimable— Jenkin v. Younger, 10th March 1825, 3 S. 639.

But it is said that the landlord here, notwithstanding the renunciation, has enforced certain obligations under the lease against the pursuer, in virtue of an award under a submission entered into between the landlord on the one part and George Kyd, the trustee acting under a trust-disposition executed by the pursuer for behoof of creditors, on the other part, and if the landlord is to be allowed to enforce such claims, so also, it is said, should be the tenant. The difference, however, lies here,—that by the deed of renunciation it was expressly agreed that although the lease was renounced, the pursuer must ‘fulfil the whole obligations and conditions of said draft tack made incumbent upon me in the last year of my possession of said farm, and without prejudice to the foresaid generality I bind and oblige myself,’ &c., and thereupon the pursuer undertakes a number of specific obligations. The ascertainment of what was the extent of the obligations of the pursuer under this clause constituted the subject of the submission, which proceeds upon the narrative— [His Lordship here stated the terms of the submission].

“Under this submission the arbiter awarded a sum of £48, 6s. 8d. as due by the pursuer to Sir Archibald Douglas Stewart. All this was within the agreement come to under which the lease was renounced. Had the pursuer reserved his claim of damages in the manner in which the landlord stipulated that the pursuer should perform certain obligations incumbent on him by the lease, he would have been in a more favourable condition for prosecuting such an action as the present. But it was no part of the bargain that any such claim should remain behind. The pursuer was anxious enough to get rid of the lease of a farm which he was unable from want of capital to cultivate, and accepted from the landlord as a sufficient return for all he renounced a discharge ‘of the whole prestations incumbent on me by the said draft tack and holograph offer and acceptance for the period thereof still unexpired subsequent to the said term of Martinmas 1879.’”

The pursuer reclaimed, and argued—That he was entitled to have the buildings, &c., on the farm put in a proper state of repair from the date of his lease. The obligation to do this was binding on Sir “William's successor, who adopted the lease, as well as on his personal representative.— Davie v. Stark, July 18, 1876, 3 R. 1114; Learmonth v. Sinclair's Trustees, January 23, 1878, 5 R. 548.

The defender Nichols Steuart replied—That the tenant was barred (1) by the terms of his renunciation— Jenkin v. Younger, March 10, 1825, 3 S. 639; (2) by having made no reservation of his rights— Broadwood v. Hunter, Feb. 2, 1855, 17 D. 340; (3) by having paid his rent and taken receipts— Baird v. Mowet, November 19, 1876, 2 R. 101. Assuming, however, that some one was liable to fulfil the obligations on which the damages were laid, the claim was against the heir in possession, who was bound at common law to repair the buildings, &c., as inter naturalia of the lease— Barclay v. Neilson, June 12, 1878, 5 R. 909. The obligation could on no possible ground be enforced against the personal representative of Sir William.

Sir Archibald Douglas Stewart argued that he was discharged by the tenant's renunciation, on the principle of the case of Jenkin v. Younger.

At advising—