Scottish Court of Session Decisions

The Crofters' Holdings (Scotland) Act 1886 (49 and 50 Vict. cap. 29), section 8, is quoted supra in rubric.

Mrs Jane Louisa Duff or Duff-Dunbar and others, trustees of the deceased Garden Duff-Dunbar of Hempriggs, Wick, appellants, being dissatisfied with a decision of the Scottish Land Court in an application at the instance of James Wares, Wick, respondent, for an order fixing the amount of compensation to which he was entitled in respect of improvements executed or paid for by him, or his predecessors in the same family, on the holding at Hempriggs Row, near Wick, occupied by him as a landholder under the appellants until Whitsunday 1917, applied for a Case for the opinion of the Court.

The Case stated—“3. The holding had been occupied by David Wares, the applicant's grandfather, at least from 1816 until his death sometime prior to 1830. He was succeeded by his widow, and subsequently by his son Donald Wares, the applicant's father. On Donald Wares' death, about twenty-seven years ago, the said James Wares became tenant and occupied the holding till the date of his removal before mentioned. 4. The claim for compensation was originally stated at £ 171, 13s. 1d., but was by subsequent amendment increased to £223, 18s. 1d. The claim included sums alleged to be due in respect of (1) dwelling-house built on the holding, (2) reclamation from heather of the whole extent of the holding, and (3) the cutting of a ditch 4 feet wide and 3 feet deep across the holding. It was proved that these improvements had been effected by the applicant or his predecessors. The appellants maintained that items 1 and 3 above mentioned, and part of item 2 to the extent of about 14 acres, were improvements executed by the applicant's grandfather in virtue of a specific agreement in writing under which he was bound to execute said improvements, and that the applicant was therefore not entitled to claim compensation therefor under the terms of section 8 of the Crofters Act 1886. 5. In support of this contention the appellants

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produced what purported to be a copy of a lease granted in favour of the applicant's grandfather, bearing to be dated 20th December 1819. No original lease has been produced, but a volume belonging to the proprietor and containing copies of estate leases and other documents is produced and founded on. The copy of the alleged lease is inserted in this volume at about the place it would naturally occupy in chronological order according to its date. It is not signed by the landlord or anyone representing him, and bears to be executed by the applicant's grandfather David Wares by his having adhibited his mark before two witnesses, David Angus and William Murray. No place of execution is stated, the witnesses are not designed, and there is no testing clause or notarial docquet.… The position and construction of the dwelling-house and ditch for which compensation is claimed comply with the requirements with reference thereto specified in the said copy lease. [The lease further provided for the payment of rent according to three specific rates—the first year at £7, 4s., the next three years at £10, 15s. 10d., and the remainder of the term at £14, 8s.] 6. The application was delegated by the Land Court to Mr Morrison, and on 8th June 1918 a hearing took place before him at Wick, at which proof was led. The subjects were inspected by Mr Morrison on 11th June 1918. On 4th July 1918 Mr Morrison issued an order in the following terms:—‘ Edinburgh, 4th July 1918.—The Land Court having considered the evidence adduced and inspected the subjects in respect of which compensation is claimed, Find that the applicant is entitled to compensation for improvements executed or paid for by him or his predecessors in the same family under and in terms of sections 8 and 10 of the Act of 1886, in so far as the said improvements are suitable to the holding and have not been executed in virtue of any specific agreement in writing under which he was bound to execute the same: Assess the compensation to which the applicant is so entitled at the sum of £121 sterling, as representing the value of such improvements to an incoming tenant: Ordain the respondent to make payment to the applicant of the said sum, and decern.…— E. E. Morrison.’ 7. The landlords appealed against this decision to the full Court, and the appeal was heard on 14th October 1918. No further oral evidence was adduced by either party, but the landlords produced three estate rentals for the years 1816–17, 1830–31, and 1834–35, which had been discovered since the previous hearing, and each of which contains an entry specifying the rent of the holding. The earliest of these rentals is prior to the date of the execution of the alleged lease, and the entry shows the said David Wares as being then tenant. The two later rentals are subsequent to the death of David Wares during the tenancy of his widow. These rentals show the rents of the holding to have been as follows 1816–17, £7,4s.; 1830–31 and 1834–35, £14, 8s. 8. On 30th November 1918 a final order in the following terms was pronounced by the Court:—‘ Edinburgh, 30 th November 1918.—The Land Court having resumed consideration of the application and heard parties, refuse the appeal and affirm the order appealed against.— David Anderson. E. E. Morrison. Norman Re1d. W. Barber.’ The Appeal Court held that the alleged lease not having been signed nor legally executed by the parties could not be founded on as evidence of a specific agreement in writing, and compensation was awarded on the footing that no such specific agreement existed. They did not find it necessary to decide whether if the alleged lease were set up as a document capable of being founded on a unilateral deed could be held to constitute an agreement in writing, or whether on a sound construction of its terms it could be interpreted as containing an agreement which was specific.”

In a note appended to their order the Land Court, inter alia, gave the following reasons for their decision:—“1. The document founded on is admittedly a copy, but it is engrossed in a volume belonging to the landlord, who would be its natural custodier, and the volume is apparently an estate record containing similar documents all executed at or about the same time. In view of the authorities cited by Professor Rankine (Leases, p. 125), we would not consider this objection in itself fatal to the possibility of using it as a foundation for the rei interventus if sufficient facts and circumstances were proved to satisfy the plea. … 3. The most difficult question arises from the fact that the copy shows that the original document did not bear the signature of David Wares, but was executed by him by adhibiting his mark before two witnesses. There is very little authority on the question whether a document executed by mark can be made the foundation of rei interventus. It seems to be settled apart from a question of rei interventus that a deed executed by mark is of no effect except under certain circumstances in the case of documents in re merecatoria—Erskine, iii. 2, 8, and 26; Dickson on Evidence, section 672. It has been so held with reference to documents of a testamentary nature— Crosbie v. Wilson, 3 Macph. 870; Stirling Stewart v. Crawfurd's Trustees, 12 R. 610, 22 S.L.R. 391; Morton v. French, 1908 S.C. 171, 45 S.L.R. 126. Most of the cases where an exception has been allowed to meet the case of documents in re mercatoria deal with bills of exchange. In such cases the mere existence of a mark alone will not be held sufficient, but in general ‘there must appear on the face of the instrument sufficient legal evidence that the writing was signed before witnesses'—L. J. C. Boyle in Stewart v. Russell, F.C., 11th July 1815—although this does not appear to be indispensable. If the mark is not admitted, proof has been allowed to clear up the matter, including evidence that the person could not write and was in use so to subscribe— Kennedy v. Watson, F.C., 25th May 1816; see also Din v. Gillies, referred to in note to Weirs, F.C., 22nd June 1813; Craigie v. Scobie, 10 S. 510.

“The case of Graham v. M'Leod, 11 D. 173, does not fall within either of these categories. It was a suspension of a charge on

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a decree for aliment, in which it was averred that a discharge of the sums contained therein had been granted by the pursuer in a document signed by her mark before two witnesses. The authenticity of the alleged mark was denied, but facts and circumstances were averred which it was alleged showed that the discharge had been acted on, and a plea of rei interventus was set up. Lord Jeffrey in disposing of the case said—‘ Rei interventus is only available to supply want of form or regular authentication, and can never be founded on where there is no admitted subscription’; and his judgment was affirmed in the Inner House, when the Lord Justice-Clerk observed—‘I do not think this is a legal document at all. There is one mode, and one alone, of authenticating a document when the party cannot write.’ There is in this case no admitted subscription, and the transaction does not fall within the category of cases in re mercatoria. We therefore feel bound to follow that decision, and to hold there is here no legal document upon which rei interventus even if sufficient facts and circumstances were proved could have been founded to set up the alleged lease. We are therefore of opinion that the objection taken by the respondents that there was a specific agreement in writing in terms of which the applicant's predecessor was bound to make these improvements has not been made out.”

The question of law stated in the Case was as follows:—“Was the Land Court right in holding that the document contained in the volume of estate leases, &c., and printed in the appendix, could not competently be founded on as evidence.”

The following additional question of law was by agreement added at the hearing in the Inner House:—“(2) On the assumption that the first question is answered in the negative, does the copy of the lease in the estate lease book embody ‘a specific agreement in writing’ within the meaning of section 8 of the Crofters' Holdings (Scotland) Act 1886?”

Argued for the appellants—Any document, even estate regulations or advertisements, might be looked at to found rei interventus. Further, it was not necessary that the writing should be subscribed by the parties. The case of Graham v. M'Leod, 1848, 11 D. 173, founded on by the respondents was an altogether different case, and Lord Jeffrey's dictum in that case if meant to lay down the law was negatived by many other cases— Campbell v. M'Lean, 1870, 8 Macph. (H.L.) 40, 7 S.L.R. 448; Bathie v. Lord Wharncliffe, 1873, 11 Macph. 490, 10 S.L.R. 308; Wight v. Newton, 1911 S.C. 762, 48 S.L.R. 637; M'Moran v. Black, 1624, M. 17, 012; Craigie v. Scobie, 1832, 10 Sh. 510. In the last case Lord Meadowbank charged the jury that it could be inferred from facts and circumstances that the signature had been adhibited. In the whole circumstances there was set up in the present case a document sufficient to constitute a lease. If that were so, then this document answered the requirements of “specific agreement in writing” in the Crofters' Holdings (Scotland) Act 1886 (49 and 50 Vict. cap. 29), section 8.

Argued for the respondent—There must be some writ on which rei interventus could follow. A document without a signature, and which could not be connected with the party against whom it was to be used, could not afford such a foundation. There was no doubt of the inefficacy of a document signed by a mark unless brought into relation with the person who adhibited the mark— Graham v. M'Leod; Morton v. French, 1908 S.C. 171, 45 S.L.R. 126. Rei interventus barred locus poenitentice, but it must be pcenitentia of some writ. Appellants in the present case were attempting to make a writ by reference to subsequent actings. In any event this was not a “specific agreement in writing” in the sense of the Crotters' Holdings (Scotland) Act 1886 (49 and 50 Vict. cap. 29), section 8. “Specific agreement in writing” could only mean an agreement constituted by writing. The present was not such an agreement, but only an adminicle of evidence. Leases validated by rei interventus were not agreements in writing, but leases in which writing was used only in modum probationis— Earl of Dalhousie v. Crockat, 1868, 6 Macph. 659; Walker v. Flint, 1863, 1 Macph. 417; Bell's Prin., sections 1187 and 1189., The entry in the landlord's books was in the same position as to evidence as a reference to oath would have been. An imperfect document, followed by rei interventus, could never be a specific agreement in writing, which required to be an operative document in the sense used by Lord Kyllachy in Paterson v. Paterson, 1897, 25 R. 144, at p. 146, 35 S.L.R. 150.