Scottish Court of Session Decisions

The executrices of the late Mrs Johnston, widow of William Johnston, farmer, South Balgray, Glasgow, raised an action against John Johnston, farmer, Blackfaulds, Lanarkshire, concluding for payment of £402 as balance of rent with interest due in respect of his occupation of the farm of Blackfaulds. The farm had been held by Mr and Mrs William Johnston in liferent, the fee being in the defender, who was their son, but it was conveyed by them and by the defender to trustees, who were directed to allow the parents the liferent, and after their death, to allow the defender the alimentary liferent thereof. William Johnston died in 1867. In 1876 the trustees, of whom the defender was one, gave him a lease of the farm for seven years, and the defender possessed it under the lease, and under a continuation by tacit relocation down to the death of his mother in May 1884. He continued to occupy the farm as liferenter from that date up to the present time.

The pursuers having in July 1895 received from the trustees an assignation of the rents payable under the lease, raised the present action.

In an action at the instance of the defender dated July 20th 1875 (reported 2 R. 986) it was decided that he was entitled to certain equitable compensation, for which accordingly the pursuers gave him credit in estimating the amount which they alleged him to be resting-owing.

The pursuers averred that the defender had paid no part of the stipulated rent.

The defender averred that it had been agreed that the rent and the compensation due to him should be accepted the one for the other. He averred further—“Stat. 12. The said Mrs Marion Waddell or Johnston refused to take proceedings, and intimated to the said Cardowan trustees, of whom the defender was one, that she did not make any claim against them in respect of their not having pressed the claim for the alleged difference between the said compensation and the rents alleged to be due.”

He pleaded—“(1) The sums sued for are prescribed, and the action should be dismissed, with expenses. (2) In respect of mora the action should be dismissed with expenses. (7) Pursuers or their mother having agreed to hold the sums sued for as discharged, the defender should be assoilzied.”

The Sheriff-Substitute ( Erskine Murray) on 9th December 1896 issued an interlocutor, by which he sustained the defender's 7th plea “so far as it is to the effect that the late Mrs Johnston, the defender's mother, having agreed to hold the sums sued for as discharged, the defender should be assoilzied.”

Note.—… “But as regards the main point, the present action is for arrears of the rent of the farm of Easter Cardowan, said to have been due to pursuers' mother Mrs Johnston. The questions involved are many and entangled, and a study of a former litigation between the parties Johnston v. Johnston and Others in 1875, 2 R. 986, is necessary. But for the purpose

Page: 467↓

of this action it is sufficient that, while pursuers are claiming as the executrices of Mrs Johnston (who had a claim as a beneficiary to the liferent of the rents of Car-dowan which she drew through trustees who had been put in charge thereof) that lady, under a letter of 11th December 1878 addressed to the Cardowan trustees, No. 11/2 of process, which is admitted by the pursuers in their answers to 10, 11, and 12 of defender's statements, expressly states:—‘With reference to the arrears of rent of Cardowan due by my son John Johnston, I hereby acknowledge that owing to his (the defender's) inability to make payment, it is not my desire to have the same enforced, and I oblige myself, my heirs, executors, and successors to hold you scaithless (1) in respect of your not enforcing payment by action of said arrears, and (2) in respect of your not enforcing payment of the rents yet to become due by my said son, so long as I do not instruct you to enforce payment of the same.’ No doubt this is addressed to the Cardowan trustees, the parties who had to collect the rents for her as beneficiary. But it was a clear statement of her desire not to have her claim enforced, and an intimation to them that they were not to enforce payment unless she changed her mind (which she reserved to herself the power to do), and instructed them to do so. But it is not averred that she ever changed her mind, or instructed them to do so. Further, it falls to be remarked that the letter deals not only with the past rents, but the future rents up to the day of her death. Moreover, it is noticeable that she obliges not only herself, but her executrices the pursuers, to hold the trustees scaithless for not enforcing the claim. The trustees, therefore, the nominal landlords of Cardowan, could not have been bound to enforce the present claim.

It is admitted that no claim was made during Mrs Johnston's lifetime, or till the present action was raised by the executrices.

In these circumstances it appears to the Sheriff-Substitute that it is manifest that the late Mrs Johnston has passed from and discharged any claim for these arrears up to the day of her death, and that the executrices cannot now insist on fulfilment of an obligation from which the party in primary right to the fulfilment thereof had passed. The defender had a right to believe that his mother had passed from it when she died without ever pressing it against him. It is out of all reason to believe that she meant it to accumulate as an obligation against him, which after her death her executrices were to exact, with interest. In the circumstances, she by dying without making any claim, practically made a gift of any right she had to the defender.

The Sheriff-Substitute has adopted the above course, because while defender was not only willing but desirous to have a general proof, it is clear, in the view of the Sheriff-Substitute, that this is what it would have come to in the end, and he has a horror of prolonging needlessly the endless litigations which have taken place between the parties.

Only half expenses have been given, as a good deal of defender's contentions would probably fall to be repelled.”

The pursuers appealed to the Court of Session, and argued—(1) The Act 1669 did not apply, because the defender had not de facto removed from the lands, but had continued on them, and the fact that the character in which he occupied them had changed made no difference— Strathern v. Cunningham, 1739, M. 11,059; Murray v. Trotter, 1709, M. 11,054.

Argued for respondent—He had satisfied the conditions of the statute by ceasing to be a tenant; actual physical removal was unnecessary. The ratio decidendi in Murray v. Trotter was different, for that was not a case of an agricultural tenant at all; while in Strathern the tenant had never ceased to be one.

At advising—