Scottish Court of Session Decisions

On 24th March 1899, Richard Wallace, contractor, Edinburgh, as an individual and also as an assignee of Miss Christian Braid, liferentrix of certain heritable property in the parish of Livingstone, Linlithgowshire, conform to assignations in his favour dated 10th February 1896 and 22nd February 1899, raised an action against Robert Braid and Andrew Braid asking the Court to ordain the defenders to pay him (1) £134, 17s., and (2) £392,10s. 9d., and further or otherwise to declare that he was entitled to have the fee of the above subjects burdened with these sums, and in any event to adjudge and declare that these subjects belonged to him in security and satisfaction of the said two sums, or otherwise to declare that the fee of these subjects was burdened with repayment to him and his heirs and executors of said two sums.

The pursuer averred as follows:—(1) With regard to the sum first sued for—Andrew Braid died on 9th February 1870 leaving a trust-disposition and settlement dated 21st August 1866, and recorded 1870, by which he conveyed his whole estate to his three daughters Jean, Christian, and Frances,

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and the survivors and survivor in liferent, and to his sons Andrew and Robert and the survivor in fee. He was survived by his daughter Christian and his two sons. He left the heritable property described in the summons, and moveable property, which, after payment of debts, &c., amounted to £4, 7s. 5d. Miss Christian Braid was appointed executor to her father, and as liferentrix in virtue of the trust-disposition and settlement she took possession of the heritable estate. The testator was indebted in the sum of £150 to the National Property Investment Company, and it was secured upon the heritable property. A balance of £134, 17s. was due at the testator's death. Miss Christian Braid, in order to secure the property from sale, borrowed the money and paid off the debt. On making payment she obtained a re-conveyance of the subjects to herself in liferent and the defenders in fee “The said Christian Braid, in making payment of said sum of £134, 17s., did so solely with the view of preventing said heritable subjects, of which she was liferentrix and the defenders fiars, from being sold, and not in any way with the view of benefiting the defenders at her expense. Before and after she paid the said sum of £134, 17s., for which she was in no way personally liable, she was advised that she had a claim therefor against the defenders and the said heritable property.” By assignation dated 10th February 1896 Miss Braid assigned to the pursuer all rights of action for relief and reimbursement competent to her against the defender as fiars of the heritable property and against the subjects or buildings therein. (2) With regard to sum second sued for— “At the date of the death of the said deceased Andrew Braid there were thirteen small houses erected on the site of said heritable subjects, the rents of which were the only provision made by him for the said Christian Braid. On entering into possession of said subjects the said Christian Braid found that most of the houses were much in need of repair. To try to prevent them from becoming ruinous and uninhabitable, the said Christian Braid caused to be executed repairs on them from time to time. Notwithstanding the repairs so executed by her some of the houses fell into a ruinous, insanitary, and uninhabitable condition, and could not be occupied. She accordingly instructed the pursuer in 1895 to put the houses which were in the worst condition into a habitable condition, and the pursuer did so. The woodwork of said houses was utterly in a decayed state, and the roofs had fallen in. By the work done by the pursuer on the instructions of the said Christian Braid, which work included the putting on of new roofs, putting on new doors, laying down drains and repairing the walls, the said houses have been converted from a ruinous condition into a habitable state, and now yield a gross rental of £60 or thereby. Some of the houses which were not repaired by the pursuer are now unoccupied and are uninhabitable. The work done by the pursuer is set forth in the account herewith produced.…

Said account begins on 29th June 1895 and ends on 30th April 1897, and amounts to £392, 10s. 9d. By the work executed by the pursuer on said houses their value was enhanced to the extent of £392, 10s. 9d., and that sum represents the value of the work to the defenders. Said sum of £392, 10s. 9d. is, as at the date of the raising of the action, and also at the date of the death of the said Christian Braid, the true value of the meliorations and improvements made by the pursuer's work on the fabric of said houses.” By assignation dated 22nd February 1899, on the narrative that the work done by the pursuer had never been paid for, Miss Braid assigned all claims competent by her as liferentrix to the pursuer, and empowered him as her substitute to take any action competent to her against the defenders for payment of the above account.

The pursuer pleaded— “(1) The said Christian Braid having paid the principal of the debt heritably secured on said subjects, and thereby enhanced the value of said property, the pursuer as her assignee is entitled to decree for the sum first sued for, or at least to have the fee of said subjects affected therewith in terms of the second conclusion of the summons. (2) The work contained in said account having been executed on the defenders' instructions, or at least on the instructions of the said Christian Braid as liferentrix of said subjects, and separatim said work having enhanced the value of the said subjects as at the date of raising the action, and as at the date of the death of the said Christian Braid, the pursuer, as an individual or as assignee of the said Christian Braid, is entitled to decree for the sum second sued for, or at least to have the fee of said subjects affected therewith in terms of the second conclusion of the summons. (3) The defenders being due and resting-owing to the pursuer the sums sued for, the pursuer is entitled to decree in terms of the first and second conclusions of the summons, or at least of one of them. (4) No relevant defence.”

The defenders explained, inter alia, that in a former action, raised on 10th November 1897, the pursuer “sued the defenders and the said Christian Braid for, inter alia, the sum of £150 and £388. The sum of £134, 17s. now sued for really represents part of the said sum of £150 formerly sued for, and the sum of £392, 10s. 9d now sued for really represents the account for the sum of £388 formerly sued for. In that other action Lord Kincairney, Ordinary, on 19th July 1898 assoilzied the defenders in the present action from the conclusions for payment of the first and second sums therein sued for, being the said sums of £388 and £150. This interlocutor has become final.”

The defender pleaded, inter alia—“(1) Res judicata. (2) The pursuer's averments are irrelevant and insufficient in law to support the conclusions of the action.”

The action referred to by the defenders was one brought by the pursuer against the present defenders and Christian Braid.

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In that action the Lord Ordinary ( Kincairney) pronounced on 19th July 1898 the following interlocutor:—“Finds that the averments of the pursuer in support of the conclusions against the defenders Robert Braid and Andrew Braid for payment of the first and second sums sued for are irrelevant, and assoilzies the said defenders from the conclusions to that extent: Finds that no decree can be pronounced under the conclusions of the summons against the defender Christian Braid for said sums, and to that extent dismisses the action as against her.”

Note—“This is an excessively confused case, very imperfectly stated; and I have not found it easy to disentangle it. The defenders are two nephews, Andrew Braid and Robert Braid, and a sister Christian Braid, of Andrew Braid, who died in 1870 leaving his estate to his three sisters, the defender Christian being one of them, for their liferent use allenarly, and to the two defenders Andrew and Robert Braid equally in fee. It does not appear on record why of the three sisters, Christian only has been called as a defender. The other two are not said to be dead. The action is directed against the three defenders jointly and severally.

The first and chief conclusion is for payment of £388, which is the amount of an account for repairs of a house in the village of Livingstone, which formed part of the property of the deceased Andrew Braid. It is averred that the repairs were executed on the employment of the defender Christian Braid. It is said that she is unable to pay for them, and the pursuer seeks to recover his account from the fiars of the property, in respect of the benefit which has been done to the property.

The pursuer's averment is conceived in very loose and general terms, and he did not refer to any authority which in my opinion supported his claim. He quoted the case of Halliday 1709, M. 13,479, in which, in a question between fiar and liferenter, the fiar was held to be burdened with the principal sum expended but not with the interest during the liferent. Professor Bell says that a liferenter must keep up the liferented tenement by necessary and proper repairs (Bell's Prin. 1062), and speaking of the natural and irreparable decay of a subject liferented, or its accidental destruction by fire, he says—‘If the liferenter repair the subject, he will have right to indemnification from the fiar taking the benefit of it to the extent of the lucrum accruing to him.’ In Morrison v. Allan. 14th July 1886 ( 13 R. 1156), quoted for the defender, the Lord President stated the general rule of law to be ‘that where a liferenter expends money in improving the subject of his liferent he is presumed to do so for the purpose of enhancing his own benefit and enjoyment of the estate.’ But his Lordship added that this rule was a presumption only. I do not read the statements on record as amounting to an averment that the liferenter executed the improvements on her house with the view of benefiting the fiars, and I think it is not relevantly averred that she did more than fairly fell on the liferentrix. Further, even if it were true that the liferentrix would have a claim on the fiars it does not follow that the tradesman can recover his account from the fiars, with whom he never contracted, and no authority to that effect was quoted. I am not prepared to sustain that claim, and think that the action for this sum against the fiars is irrelevant. The second conclusion is for payment of £150, and that claim is in a still more peculiar position. The record on this point is extremely confused. What I understand to be averred is briefly this, that the late Andrew Braid was indebted in the sum of £150 to the National Property Investment Company, that it was secured over his heritable property, and that after his death the defender Christian Braid paid this bond or the balance of it; that afterwards she borrowed £150 from the pursuer, and that she granted him an assignation dated 10th February 1896, by which she assigned to him all rights of action for relief and reimbursement competent to her against the fiars of the heritable property which was burdened, that is, against the defenders Andrew and Robert Braid.… I am of opinion that there is no relevant case against the fiars for this £150 second sued for.…

As regards the defender Miss Christian Braid, I find myself in a difficulty. I do not see why she should not pay for the work done on her house if she employed the pursuer to do it, or why she should not repay the £150 if she borrowed it; and I should have thought it not impossible under the conclusions of this summons to decern against her severally and individually. But counsel for the defender quoted an opinion by one of the Judges in the case of Mackersey v. Davis & Son Limited, 16th February 1895, 22 R. 368, to the effect that when a claim was joint and several there could be no decree against either defender unless there could be decree against both. I have learned that in a more recent case a judgment or opinion to the same effect has been delivered in the First Division. Deferring to these opinions, I must hold that it follows from my judgment that the action, so far as regards the first and second conclusions, is irrelevant against the fiars, that I must hold that the action, so far as regards these conclusions, cannot proceed against Christian Baird either, and must, as against her, be dismissed.”

In the present action, on 5th December 1899, the Lord Ordinary ( Kincairney) pronounced the following interlocutor—“Having heard counsel for the parties in the Procedure Roll in regard to the sum of £134, 17s. first concluded for—Sustains the defender's plea of res judicata: Further, finds that the pursuer's averments are irrelevant: Further, in regard to the sum of £392, 10s. 9d. second concluded for, finds that the pursuer's averments are irrelevant: Therefore assoilzies the defenders from the conclusions of the summons, and decerns.”

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The pursuer reclaimed, and argued—(1) As to the £134, 17s. sued for— This was a debt of the testator's which had been paid off by Miss Braid, and as her assignee the pursuer was entitled to recover it as against the testator's estate. There was no relevant statement on record to sustain the defenders' plea of res judicata. The pursuer in the last action did not sue in his capacity as assignee of Miss Braid; the sums sued for were not of like amount; and there were new allegations in the present action. The decision in the former action could not be res judicata—Gillespie v. Russel, May 22. 1859, 3 Macq. 757. Besides, the dismissal of an action or absolvitor on the ground of relevancy could never be res judicata, as in such circumstances there was no judgment exhausting the cause— Menzies v. Menzies, March 17, 1893, 20 R. (H.L.) 108, opinion of Lord Watson. (2) As to the £392, 10s. 9d. sued for. There was a presumption in law that a liferentrix making repairs on the subjects liferented did so on her own behalf, but this presumption might be overcome— Morrisons v. Allan, July 14, 1886, 13 R. 1156, opinions of Lord Mure, 1157, and L.P. Inglis, 1169. The averments on record, however, showed that the liferentrix was not in the present case acting in her own interest. The liferentrix was therefore entitled to indemnification from the fiar taking benefit to the extent of the lucrum accruing to him, and was entitled to be repaid for her expenditure so far as it enhanced the value of the subjects—Erskine, ii. 9, 60; Bell's Prin., 10th ed. 1062, 1063; More's Conveyancing, i. 213; Guthrie v. M‘Kerston, February 2,1672, M. 13,414; Holiday v. Gardine, February 20,1706, M. 13,419; Scott v. Forbes, March 5,1755, M. 8278; Douglas v. Douglas’ Trustees, July 20, 1864, 2 Macph. 1379; Nelson v. Gordon, 26 June 1874, 1 R. 1093, opinion of L.P. Inglis, 1099. The pursuer as assignee of the liferentrix was therefore entitled to this sum.

Argued for defenders—(1) As to the £134, 17s. sued for—The Lord Ordinary, who had heard both actions, was of opinion that on this point the real issue had been considered and decided in last action. He had therefore sustained the defenders' plea of res judicata. The grounds on which the Lord Ordinary had decided the former action were sound— Waddell v. Waddell, March 9, 1818, 6 Dow's App. 279. The pursuer's averments were not specific enough to be remitted to probation. Indeed, so far as they went they told against his case, for they showed that Miss Braid had not kept up the debt against the property, and had therefore nothing to assign. (2) As to the £392, 10s. 9d. sued for— The old cases in Morison did not apply. These cases and Erskine, ii. 9, 60, showed that the authority of the Court was necessary before the repairs could be made. The law laid down in these cases was now obsolete, and since the beginning of the century no liferenter had ever been found entitled to repayment from the fiar for repairs on a property except in exceptional circumstances. No such exceptional circumstances existed here. The liferentrix had possessed the property for twenty-five years, and it must be assumed that the subjects had fallen into decay because she did not keep them up. The presumption was that she had repaired the property for her own benefit, and had no claim for reimbursement against the fiar— Readie v. Yeaman, July 1875, 12 S.L.R. 625.

At advising—