Scottish Court of Session Decisions

If this document is the lease, then there is an end of their case, because it must be held to be in the hands of the landlord, but it is suggested that it is the landlord's duplicate of the lease. Even in that case it is only a duplicate. The respondents say, however, that the other duplicate—the tenants'—exists or did exist, and they propose to prove that by parole evidence. The document they have got goes no further than to prove that such a lease once existed. If it is the landlord's duplicate it goes no further than that; but if it is the only lease, then it suggests very clearly that any right under it has been renounced. They propose, however, to prove that they have right to the lease, and to prove its continued existence in favour of the tenant under it, and its transference to their author, by parole evidence, with nothing to aid it but a letter by the agent of Hugh Halliday and a few receipts.

I think no reason has been suggested sufficient to induce us to make an exception from the ordinary rule of law that a party who avers such a heritable right as a lease for 999 years must support it by writ. The respondents adduce nothing in support of their claim but the lease recovered from another process in the manner I have described. They have no right to found upon it, because their author had already been ordered by a competent Court to deliver it up to its true owner, and since then there has been a process to remove their author from possession of the subjects to which they claim right. That action their author defended, but not on the ground that he had a 999 years' lease of a portion of the subjects. His defence was that he had lent money on security of the pledge of the titles to these subjects and others adjacent. That was an intelligible ground of defence, and the only position he took in that action. His pleas, however, were repelled, and decree of removing was pronounced against him. That result is certainly inconsistent with his being in right of a 999 years' lease of a part of the subjects from which he was decerned to remove. Throughout the whole course of that action he never suggested that he was in right of such a lease, and it is absurd to say that if he had had such a right he would not have pleaded it. He was accordingly ordained to remove in 1838.

The respondents, however, now produce some receipts, in whose handwriting we are not told, from a Hugh Halliday, granted to their author for ground and feu rent about the years 1858 and 1860, and found on them as establishing their rights.

All the original parties to these transactions are now dead. For the last sixteen years the mother of the ostensible proprietor has been living in the premises in dispute without paying any rent. In these circumstances I think this matter an exceptionally strong case for adhering to the rule of law against admitting parole evidence of such a heritable right as is claimed, than one in which we should depart from that rule.

I am, then, for adhering to the Lord Ordinary's interlocutor.

The Lord Justice-Clerk and Lord Craighill concurred.

Lord Rutherfurd Clark—I am rather inclined to take an opposite view, and to hold that the safer course would have been to allow parties a proof of their averments here. I do not mean to go in detail into the grounds of my opinion, but will merely indicate a few considerations which occur to me. The property was acquired in 1814, and there is no question that soon after that the proprietor gave out the lease of 999 years to John M'Intyre; and it is matter of averment and not disputed that possession followed on the lease of 1814, so that the right of property was from that date burdened with a 999 years' lease, and continued so unless it was extinguished in some way. Now, so far as the complainer's case is concerned, I do not see any allegation that the lease was extinguished, and that being so, it would follow that while the property was in the complainer there was a right in some-one else to possess a part of it on long lease. Again, looking to the averment of the respondents, I see it states that possession was continued from 1814 down to the present time. It was commenced by Samuel Halliday, the original tenant; in 1832 it appears his heir Oliver was in possession, and then, after the transaction to which I shall immediately refer, it is said the possession was continued by James Barbour and his representatives to the present time. Consequently not only have we the constitution of the burden, but we have an allegation that the lease has been in enjoyment from 1814 to the present time as a title of possession. It is difficult then to say that the complainer is entitled to stop that possession, which would be the effect of suspending the decree.

Now, the first question is as to whether the respondents have made sufficient averments to support the decree in absence sought to be suspended, and I look on this as the most difficult part of the respondents' case, for they are not only seeking to maintain possession but to declare a right as existing in them. They say they produce a lease which they acquired by a transaction with the heir of the original tenant Now there is a certain amount of proof offered of this averment—(First) A letter from a person said to be the heir, willing to sell to Barbour for £10, and said to be completed by Barbour paying £10, the account being produced. (Second) There is a recognition of that possession by the landlord as flowing from some title when we see receipts for 8s. a-year as feu-duty or feu-rent, which is exactly the sum payable under the long lease. Now, it is said that all this is to be disregarded by reason of what took place in the process of removing. But I confess that I am not moved by it all. There is nothing exceptional in it except the question of the security or proprietary right which Barbour held. There was no question with regard to the leasehold property at all. Decree was pronounced for the whole subjects, but it was not carried out for some reason for the leasehold subjects, for the allegation is that Oliver continued to possess notwithstanding the decree, and paid ground rent from time to time, and even the ground rent was sued for and received by the proprietor. Now, whatever was the effect of the decree, if we accept the allegation of the respondents here, it is plain it was never acted upon, not because Barbour pleaded the right as a tenant in that action (which he did not), but because after decree had been pronounced he bought the lease up and the landlord recognised him as tenant. But this leaves the respondents in the difficulty as to whether they can connect themselves with the long lease. I think they should have brought the heir into the case to declare the lease in a question with him, and if this had been done I think there would have been less difficulty in their case than if they had tried the question with the proprietor. But I think where they have not followed it out it would have been safe to allow a proof, so that the whole matter might be cleared up.