Scottish Court of Session Decisions

This was an action at the instance of Thomas Johnston, contractor, East Main Street, Armadale, against William Johnston, sometime colliery manager, Boyd's Buildings, Darvel, Ayrshire, and Alexander Johnston, carting contractor, East Main Street, Armadale. The pursuer sought to establish a right to a liferent of a certain house in East Main Street, Armadale; the summons concluded for declarator of that right and for an accounting in respect of intromissions by the defenders with the rents of the house.

The pursuer founded on the following holograph letter of 25th February 1898 received by him from the defender William Johnston, the then proprietor of the house in question, viz.—“This is to certify that I do hereby, of my own free will and accord, grant the use of the room and kitchen now occupied by John M'Kinnon—who must remove at first term—to my brother Thomas Johnston, free of any rent during the natural period of his life, or period of his natural life, with liberty to add a back place such as a small room or kitchen to it. He to have the piece of ground as a garden, which is right behind the house. This I do in consideration of him loosing his eyesight. And he is to act jointly with my brother Alexander in looking after and keeping them in order as a factor would do. (Signed) William Johnston.”

The pursuer entered into possession of the subjects referred to and occupied them himself from Whitsunday 1898 to Whitsunday 1900. He then let them. In the present action he averred—“(Cond.4) On 10th April 1902 the defender William Johnston, by letter addressed to the pursuer and duly received by him, sought to cancel the said holograph letter dated 25th February 1898. About the same time the said defender prohibited the tenant from paying the rent due by him to the pursuer, and both defenders have since intromitted therewith. Thereafter the defender William Johnston disponed the said subjects to the defender Alexander Johnston, by disposition dated 31st July and recorded 12th August, both in the year 1903. This disposition was granted by the defender William Johnston and accepted by the said defender Alexander Johnston in the full knowledge by both of the pursuer's liferent right and interests constituted by the holograph letter above referred to, and subsequent possession.”

The defenders maintained that no liferent had been conferred upon the pursuer, but only a right to use the house in question.

On 6th February 1904 the Lord Ordinary ( Kyllachy) pronounced the following interlocutor:—“Finds that on a just construction of the letter referred to on record, the same did not constitute any liferent or other proprietary right in favour of the pursuer, but only a right of personal occupation during his life; therefore assoilzies

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the defenders from the conclusions of the action, and decerns,” &c.

The pursuer reclaimed—At the hearing the following cases were referred to— Rodgers' Trustees v. Rodger, January 9, 1875, 2 R. 294, 12 S.L.R. 204; Bayne's Trustees v. Bayne, November 3, 1894, 22 R. 26, 32 S.L.R. 31; Cathcart's Trustees v. Allardice, December 21, 1899, 2 F. 326, 37 S.L.R. 252.