Scottish Court of Session Decisions

The Duke of Bedford and others brought this action against Colonel the Hon. Walter John Stewart, Mire House, Keswick, Cumberland, as trustee and executor of the deceased Right Hon. Alan Plantagenet, Earl of Galloway, and also as an individual, concluding for payment of £646, 16s. 5d., and for declarator that the defender, as trustee and executor foresaid, or otherwise as an individual, was bound to free and relieve the pursuers of all claims made or which might be made against them for the rents of the fishings of Machermore and Carse-willoch amounting to £1485, or any part thereof, and for interdict against the defender, as trustee and executor foresaid, from paying away any portion of the said trust estate in his hands without retaining an amount sufficient to meet the said claims.

By lease last dated 12th April 1900, entered into between the deceased Earl of Galloway, then heir of entail in possession of the entailed lands and estate of Galloway, Baldoon, and Newton-Stewart, in the county of Wigtown and stewartry of Kirkcudbright, on the one part, and the pursuers on the other part, the said deceased Earl of Galloway let to the pursuers the salmon and other fishings, both net and rod, in the rivers Cree and Minnick, and in the burns of Trool and Penkiln, in so far as forming part of the said entailed estates, subject to certain exceptions and reservations. The endurance of the lease was to be for twenty-one years or fishing seasons, beginning with the fishing season for 1900. The rent was £350. The lease narrated that its purpose was to improve the fishings in the river Cree and other rivers, and that in furtherance thereof the said Earl had negotiated leases from various other riparian proprietors on the said river Cree possessing rights of salmon and other fishing therein, and had arranged that the said leases should he granted to and in favour of the pursuers, subject to the terms and conditions as to the manner in which the said rights of fishing therein were to be exercised, which were contained in the said several leases. By the lease the said Earl let to the pursuers and their heirs, expressly excluding assignees, whether legal or voluntary, unless with the express consent in writing of the said Earl or his successors in the said entailed lands and estates of Galloway, Baldoon, and others, all and whole the salmon and other fishings (both net and rod fishings) before referred to. Among the conditions of the lease was the following— Third, “The rights of fishing hereby granted to the said second parties shall

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as regards” certain portions of the rivers specified “cease and determine on the 31st day of July in each year or fishing season, and the said first party shall be entitled, either by himself or his foresaids ( i.e., his successors in the entail) to enter into possession of, occupy, and use the said fishings in the said” portions of the rivers before specified, “or to let the same to one or more tenants for the remainder of each fishing season, and that in the same manner, and to the same effect as if this lease had not been granted.”

The lease also contained the following clause—“Which lease, with and under the conditions, provisions, reservations, and declarations before and after written, the said Earl of Galloway binds and obliges himself and his foresaids to warrant to the second parties (the pursuers) and their foresaids at all hands;” and a further clause—“And both parties bind and oblige themselves and their foresaids to implement and perform their respective parts of the premises to each other under the penalty of £500 sterling, to be paid by the party failing to the party observing or willing to observe his or their part thereof, over and above performance.”

The pursuers averred that they purchased from the outgoing tenants of the net-fishings their nets and plant, it being part of the bargain that they should do so. Since the granting of said lease the pursuers have expended large sums upon, and given much personal attention to, the improvement of the fishings. The late Earl of Galloway died on 7th February 1901, and was succeeded in said entailed lands and others by the present Earl of Galloway. Shortly after his succession the present Earl raised an action for the reduction of said lease on the ground, inter alia, that the late Earl as heir of entail in possession had no power without the authority of the Court to bind the succeeding heirs of entail by the said lease, and after sundry procedure their Lordships of the First Division reduced said lease, and found the said Earl entitled to the expenses of the action (reported 4 F. 851, 39 S.L.R. 692).

The pursuers pleaded, inter alia—“(1) The said lease to the pursuers having been reduced, and the said late Earl of Galloway having bound himself to warrant the same, the pursuers are entitled to repayment out of his estate of the expenses and outlays to which they have been put, and to be relieved of their liability for future rents. (2) Upon a sound construction of said lease and the clause of warrandice founded on, the defender, as executor foresaid, is liable for the sum sued for.”

The defender pleaded, inter alia—“(3) The pursuers' averments are irrelevant and insufficient to support the conclusions of the summons against the defender; et separatim, against the defender as an individual. (4) Upon a sound construction of the said lease, and in particular of the clause of warrandice founded on, the defender is not liable to the pursuers in the sum sued for, and decree of absolvitor ought to be pronounced, with expenses. (5) The late Earl of Galloway not having bound his personal representatives or estate in warrandice under the said lease, and having granted the same only qua heir of entail, the defender should be assoilzied, with expenses.”

On 5th February 1904 the Lord Ordinary ( Kyllachy) assoilzied the defender from the conclusions of the action and found him entitled to expenses.

Opinion—“This case is the sequel of a recent action in which a lease of salmon and other fishings made between the late Earl of Galloway and the present pursuers was set aside as being in contravention of the Galloway entail. The ground of reduction was, as will be found explained in 4 F. 851, that the lease in question was not an act of ordinary administration, but was, speaking generally, an anomalous and highly complex agreement for the management and development of certain fisheries—fisheries partly belonging to the lessor and partly to other persons—in which the lessor and lessees were jointly interested. The lease being reduced, the pursuers now bring the present action against the executor of the late Earl concluding for repayment of certain expenditure which they incurred in connection with and on the faith of the lease, and they make this claim in virtue of the clause of warrandice contained in the lease by which the lessor bound himself and his ‘foresaids,’ that is to say, ‘his successors in the said entailed lands and estate of Galloway and others,’ to warrant the lease to the second parties (the pursuers) at all hands.

The executor maintains various defences; but in the first place he contends that by the above-quoted clause his liability as executor is not covered, but is in fact excluded. In other words, he contends that, on the just construction of the clause, the pursuers recognised, or must be held to have recognised, the special character of the lease; and to have therefore accepted an expressly limited warrandice, which, while securing as against the heirs of entail, while the lease stood, such recourse as might arise in the case, for instance, of partial evictions, yet treated the power of the lessor as heir of entail to make the lease as a matter upon which the lessees were satisfied, or took their risk.

I am, I confess, glad that I do not require to determine what would have been the implied warrandice under this lease if there had been no warrandice expressed. I think that, having regard to the specialties to which I have adverted, that might have been rather a difficult question. On other hand, it may perhaps be conceded that if (there being a warrandice clause) it had been expressed according to the usual style—viz., as an obligation by the lessor binding ‘himself and his heirs and successors to warrant at all hands and against all mortals,’—the defenders case’ would, on the authorities,

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have been somewhat difficult. For the words ‘heirs and successors’ would, I think, have been held (in the event of the lease failing for want of power in the lessor) to include not only the lessor's heirs and successors in the subject let, but his heirs and successors generally— i.e., his general representatives. That, I think, is the result of the decisions in the Queensberry and other cases. And the result would, I apprehend, have been the same, and would have been so perhaps a fortiori if the clause had simply borne that the lessor granted absolute warrandice, or warrandice at all hands and against all mortals.

In the present case, however, it appears to me that the matter is not left to implication or to the construction of elastic terms. The clause here deals expressly with the liability after the granter's death; and the liability which it enacts is not a liability against heirs and successors generally, but a liability expressly limited to the lessor's successors in the entailed estate. Now, I can find no ground for putting on a clause thus limited any other than the natural construction. I can find no authority for doing so either in the judgments or opinions in the Queensberry cases, or in the discussions weth respect to the different kinds and effects of warrandice in the feu and leasehold which took place, for instance, in the case of Macallum v. Duke of Montrose, 6 Macph. 382; 8 Macph. (H.L.) 1. It may be true that in the case of eviction for want of power in the lessor the obligation as now construed operates nothing, and that it becomes simply one of the lessor's obligations under the lease—obligations which, had the lease been within his powers, would of course have been binding on succeeding heirs of entail, but which as matters stand are simply inoperative. But then that is just the defender's case. His case is that the clause of warrandice is inapplicable—inapplicable, and not meant to be applicable, to the event which has happened; his suggestion being, as I have already said, that the pursuers, having the eutail in view, were either satisfied on the question of power, or being doubtful about it took their risk.

The question therefore really is, whether the above is not the fair conclusion from the language used. And on the whole, having given the matter my best consideration, I am of opinion in the affirmative. It is not necessary to go further into detail; but, in a word, I do not see my way to read the clause as if it had run ‘which lease the said Earl of Galloway binds and obliges himself and his foresaids (and also in the event of the lease being found to be beyond his powers as heir of entail, his heirs, executors, and representatives whomsoever) to warrant to the said second parties at all hands.’”

The pursuers reclaimed, and argued—The lessees having been evicted by a defect in the title of the lessor to grant the lease were entitled under the clause of warrandice to claim relief from any estate or property held by the executor of the deceased lessor. The lease having turned out inoperative the lessees were entitled to have relief from their obligations and the outlays undertaken by them on the faith of the lease from the lessor and his personal representatives— Symington v. Duke of Queensberry's Executors, January 29, 1823, 2 S. 162; Hyslop v. Duke of Queensberry's Executors, November 13, 1822, 2 S. 8; Downie v. Campbell, January 31, 1815, F.C. The granting of the lease was a representation that the granter had a title to grant, and on that ground his executor was liable. Under the lease as construed by the Court in the action of reduction, the lessees had no recourse against the succeeding heir of entail, and therefore the clause of warrandice would be quite ineffectual unless it were construed as giving recourse against the personal representatives of the granter of the lease. If, then, there was ambiguity in the terms of the clause of warrandice, it should be construed so as to render it of some effect rather than to make it totally ineffective.

Argued for the defender and respondent—The whole provisions of the lease as well as the terms of the clause of warrandice showed that the intention of the parties was merely to limit the late Earl of Galloway during his life, and his successors in the entailed estates after his death. The lease was very special in its character and provisions, and the limitation of the warrandice to an obligation by the heir of entail in possession and his successors in the entail was in accordance with the scope and intention of the lease, which had for its purpose the improvement of the fishings of the entailed estates and the benefit of succeeding heirs of entail. The want of power on the part of the granter of the lease to grant it was a matter which the parties had not provided against, and the clause of warrandice was inapplicable and not meant to be applicable to the event which happened. The cases cited by the pursuers were quite distinguishable. There was here no eviction, but merely a refusal to renew a lease— Stewart v. M'Callum, February 14, 1868, 6 Macph. 382, February 17, 1870, 8 Macph. (H.L.) 1, 5 S.L.R. 256, 7 S.L.R. 308.