Scottish Court of Session Decisions

On 21st April 1888 an action of maills and duties was raised by Mrs Harriot Holmes or Robertson and others, trustees of the deceased R. J. Robertson, W.S., against John Gardner, quarrymaster, Ibrox, near Glasgow, Alexander Gardner, quarry-master, Lagnaha, Argyllshire, and James Young Gardner, heritable proprietor pro indiviso of the lands of Auchindarroeh, Argyllshire, and of Lagnaha aforesaid, as principal debtors, and also against various other persons mentioned in the summons, who were described as the tenants or occupants of the lands and subjects at Lagnaha.

The pursuers averred that they were heritable creditors upon the said lands and estate to the extent of £9550, contained in a bond and disposition in security, and that the said sum and interest from Martinmas preceding were unpaid, and they had reason to fear would not be paid.

After various procedure the Lord Ordinary ( Lee), on 25th May 1888, decerned in absence against the principal debtors, the proprietors, and also against certain of the tenants, who did not appear; and thereafter, on 19th July 1888, his Lordship pronounced the following interlocutor:—“Finds it not instructed that the compearing defenders have paid the rents and lordships due at and prior to 1st May 1888, or had ceased at the date of raising this action to be liable therefor: Therefore repels the defences so far as applicable to the rents and lordships for the possession up to May 1888, and decerns against the defenders the said John Gardner, Alexander Gardner, and George Jamieson Alison junior, as trustees for the firm of J. & A. Gardner & Company, jointly and severally, and the said J. & A. Gardner & Company, to make payment of the rents, lordships, and others concluded for in terms of the conclusions of the summons, save and except the rents, lordships, and others subsequent to 1st May 1888, as to which dismisses the action as against said defenders, and decerns.” And this interlocutor was on a reclaiming-note adhered to.

In January 1889 a petition was presented in the Sheriff Court of Argyllshire at Oban by Robertson's trustees, as heritable creditors in possession of the lands of Auchindarroch and Lagnaha, under the decrees in the action of maills and duties against Duncan Macgregor Gardner, quarrymaster, Lagnaha, praying for sequestration of the defenders' effects in security, and for payment of (1) £25 as rent for the half-year from 1st May 1888 to 1st November 1888; (2) £25 as half-year's rent to become due and payable at 1st May 1889, and to grant warrant to inventory and secure the whole effects subject to the pursuers' hypothec, and for warrant of sale, &c.

It was admitted that the defender was and had been since 6th April 1888 lessee of the quarry at Lagnaha, and houses connected therewith, conform to (1) minute of lease between John Gardner and others, the proprietors, and the said John Gardner and others, trustees for J. & A. Gardner & Company, and assignation thereof by the latter to him and acceptance thereof. The rents were £50 for the quarry, with an alternative lordship, £50 for the houses, and £50 for the stores. It was also admitted that the rents as at Martinmas 1889 were unpaid.

The pursuers alleged that they had a right of hypothec over the subjects, that the action of maills and duties was effectual against the defender as the successor of the tenants therein named and whose assignee he was.

The defender denied that the pursuers, as heritable creditors, were in possession of that portion of the said estates which was occupied by him as tenant, and averred that none of the decrees of maills and duties founded on by the pursuers was directed against the defender as tenant, although the pursuers were informed that he was in possession at the date when the said action was raised. The defender further alleged that the rents claimed were neither due nor resting-owing to the pursuers, who were not in a position to give him a valid discharge thereof; that the decree in the action of maills and duties was not directed against the pursuers, but against the former tenants, who had ceased to be tenants before the action of maills and duties was raised, or to have any interest in the said quarries.

The pursuers pleaded (1) that as the defender was in arrear in payment of his rent they were entitled to sequestrate his effects in security, and for payment of rent, and (2) that as their right of hypothec was in danger of being defeated, they were entitled to the decree craved.

Page: 548↓

The defender pleaded, inter alia—(1) That as the pursuers had not entered into possession of the subjects occupied by him either under the decree of maills and duties or otherwise, they were not entitled to pursue the action; (2) that the pursuers had not the right of hypothec they claimed.

On 26th March 1889 the Sheriff-Substitute ( Maclachlan) pronounced the following interlocutor:—“Finds that the pursuers are heritable creditors in possession of certain lands and others, including the subjects mentioned in the petition, in virtue of decrees of maills and duties dated 25th May 1888, and 19th July 1888, and 15th January 1889: Finds that the defender is, and has been since 6th April 1888, tenant of the said subjects, conform to a minute of lease and assignation thereof in his favour dated 11th and 12th April 1888, and relative minute of acceptance dated 12th and 14th April 1888: Finds that the said decrees gave the pursuers, as heritable creditors foresaid, a right to pursue for and recover the rents of said subjects from all parties in possession of the same: Therefore decerns against the defender in terms of the conclusions of the petition, &c.

“ Note.—This is an action of sequestration for rent raised by heritable creditors holding decrees of maills and duties which were pronounced in an action raised by them on 21st April 1888, in which they called the proprietors of the subjects as principal debtors, and the several tenants or occupants for the respective rents due by them. The action was undefended by the proprietors and certain of the tenants, and decree was pronounced against them, conform to the conclusions of the summons, but the parties who were called in respect of their occupancy of other portions of the subjects, being those referred to in the present action, defended, on the ground that before the action of maills and duties was raised they had assigned their lease to the present defender by assignation duly intimated to and approved of by the proprietors, and they pleaded that having ceased to be tenants before the action was raised, the same, so far as directed against them, was incompetent. But as they failed to shew that they had paid the rents and lordships due at and prior to 1st May 1888, or had ceased at the date of the action to be liable therefor, decree of maills and duties was pronounced against them for these rents, and as to the rents, lordships, and others subsequent to 1st May 1888, the action was dismissed as against said defenders. The present defender pleads that as there was no conclusion against him these decrees of maills and duties do not affect him though he was in possession when the action was raised, and the same cannot apply to those portions of the estate which he occupied as tenant. This appears to be a plea against the competency of the proceedings in the action of maills and duties, and cannot now be considered. In that action decree was pronounced against the proprietors, and that decree gives a right to recover and intromit with the whole rents due, so far as the security extends and is operative, as a constant title of possession against the natural possessors of the ground, and also against the proprietors or liferenters who are in the civil possession, and from whom the natural possessors derive their right—(E. iv., 1, 49). By his assignation, which was duly intimated and ratified, the defender is the tenant of and derives his right from the proprietors, against whom there is a continuing decree, and not from the previous tenants, the decree against whom was limited to the rents applicable to the period of their possession. The rents, therefore, that are due by the defender are payable directly to the pursuers, and they must be allowed the ordinary means for recovering the same. This principle was recognised in the case of Railton v. Muirhead, June 20, 1834, 12 S. 757, where a creditor holding a decree of maills and duties had allowed the debtor, who was also proprietor, to enter into possession of the subjects, but was found not entitled to bring a sequestration for rent, because he failed to make out any agreement for lease with the debtor, or that the latter had entered on the subject otherwise than as a proprietor, and a poinding of the ground is the proper remedy when the proprietor is in possession.”

The defender appealed to the Court of Session, and argued—That the decree of maills and duties was not operative against him, because, in the knowledge of the pursuers, though he was a tenant at the date of the signeting of the summons, he was not called as a party to that action. Besides, the decree did not warrant sequestration with reference to the portion of the estate occupied by the defender. The decree in the action of maills and duties would not found the present proceedings, and without the decree the clause of assignation of rents contained in the bond would not warrant sequestration— Webster, July 13, 1780, M. 2902; Neils v. Lyle, December 1, 1863, 2 Macph. 168; Scottish Heritable Security Company v. Allan, Campbell, & Company, January 14, 1876, 3 R. 333; Titles to Land Consolidation (Scotland) Act 1868 (31 and 32 Vict. cap. 101); Rankine on Leases, p. 324. The defender was willing to consign but not to pay, as he dreaded repetition as not being included in the decree. The respondents' title was bad as they should have set forth their assignation to rents in the bond—Bell's Prins. sec. 1243; Railton v. Muirhead, June 20, 1834, 12 Sh. 757; Rankine's Land Ownership, p. 44, instead of which they merely founded on the decree of maills and duties, which the appellant contended was bad.

Argued for the respondents—The only question of importance was, whether the pursuers had effectually ousted the landlord by entering as heritable creditors into possession of the lands in virtue of their decree of maills and duties. Their right of hypothec and to sequestrate for rent depended undoubtedly upon that. The action of maills and duties had a twofold effect, first against the landlord, and second against the tenants. By not defending the landlord did what was equivalent to assenting to the pursuers coming into his place, and it was an intimation to that effect to the tenants—Duff's Feudal Conveyancing, p. 274; Lothian, July 11, 1634, M. 14,087; Forsyth v. Aird, December 13, 1853, 16 D. 197. The defender, though not actually a party to the cause, was well aware of what was going on. Where the heritable creditor has by a decree of maills and duties displaced the landlord, he can uplift the rents of tenants not called in the process and can grant a valid discharge—Wedderburn, July 23, 1709, M. 10,399;

Page: 549↓

M'Glashan's Sheriff Court Practice, p. 405; Budge v. Brown's Trustees, July 12, 1872, 10 Macph. 958.

At advising—