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Hiskett & Ors v. G and G Wilson & Ors [2003] ScotCS 290 (25 November 2003)

OUTER HOUSE, COURT OF SESSION

CA156/02

OPINION OF LORD DRUMMOND YOUNG

in the cause

MRS CAROLE HILDA HISKETT AND OTHERS

Pursuers;

against

THE NOW DISSOLVED FIRM OF

G & G WILSON AND OTHERS

Defenders:

________________

Pursuer: Sutherland; Shepherd & Wedderburn, W.S.

Defender: Henderson; Morisons

25 November 2003

[1] The pursuers are the heritable proprietors of the farm and lands now known collectively as Mains of Dellavaird, situated in Kincardineshire; they inherited the property from their father, who died on 17 December 1988. The Pursuers aver that that property incorporates the farms formerly known as Milton of Dellavaird and Mains of Dellavaird. The first defenders are described as the now dissolved firm of G & G Wilson and the whole former partners thereof, namely George Sinclair Wilson and Mrs Marion Wilson, as former partners and as individuals. The second defender is George Sinclair Wilson as an individual, and the third defender is George Graham Wilson as an individual. The fourth defender is John Patullo, who was appointed as an arbiter in a dispute between the pursuers and the firm of G & G Wilson under the Agricultural Holdings (Scotland) Act 1991.

[2] The pursuers conclude for declarator that the tenant of the farm of Mains of Dellavaird, incorporating the farms of Milton and Mains of Dellavaird, was the now dissolved firm of Messrs G & G Wilson, comprising George Sinclair Wilson and Mrs Marion Wilson as former partners. They further conclude for declarator that the lease between the pursuers and the now dissolved firm came to an end on the assumption of George Graham Wilson as an additional partner some time after January 1997, at a date unknown to the pursuers, and that consequently none of the first, second or third defenders has any further right or title to occupy the farm. The third conclusion is for removing, and the fourth conclusion is for interdict against further proceedings in an arbitration between the pursuers and the firm of Messrs G & G Wilson under the Agricultural Holdings (Scotland) Act 1991.

[3] The pursuers' averments are as follows. In 1961 the farms of Milton of Dellavaird and Mains of Dellavaird were let to George Wilson and George Sinclair Wilson, with entry at Whitsunday in that year. George Sinclair Wilson, the second defender, was the son of George Wilson. At that time the two farms were the subject of separate offers to let. Agents for the then landlord, the pursuers' father, had prepared separate typewritten conditions of letting for each farm. So far as material, the conditions of letting relative to Mains of Dellavaird were in the following terms:

"1. The Farm of Mains of Dellavaird, as presently occupied by Mr George G. Bremner is to let on Lease for 10 years, with entry at the term of Whitsunday, 1961, and with a break at the end of five years or as may be agreed on. The rent agreed on will be payable in equal portions at Whitsunday and Martinmas..., beginning the first term's payment at Martinmas, 1961...

2. The extent of the Farm is 183 acres or thereby of arable land...

3. Their tenant shall not be entitled to sub-let any portion of the subjects let without the written consent of the Proprietor or his Factor".

There followed a number of clauses dealing with houses and dykes, the maintenance and repair of fences, ditches and drains, the taking over of fixed equipment and certain other items from the outgoing tenant, and certain other standard matters. The last clause provided that, in the event of the farm's being let, the tenant should be bound to enter into a lease in terms of the conditions of letting and the other conditions and regulations usual in leases on the Dellavaird estate. The conditions of letting relative to Milton of Dellavaird were in identical terms except for the name of the farm, the acreage, which in this case was 185 acres, and the list of fixed equipment to be taken over, which was obviously different.

[4] On the conditions of letting for Mains of Dellavaird, immediately under the last of the conditions, was a manuscript offer in the following terms:

"Milton to George Wilson

Mains to Geo S. Wilson

Bradeshade

Fordoun

Laurencekirk

3^rd March, 1961

We hereby offer for the tenancies of Mains & Milton of Dellavaird on the conditions of letting which we have seen... at a rent of £4 per acre are for both farms, subject to the following additional conditions:

(1) The Cottar Houses or such of them as we require shall be brought up to modern standards within the next few years &

(2) Repair is to be carried out [to a building] at Mains to make it watertight".

The manuscript offer was signed by George Wilson and George Sinclair Wilson, and the signatures of two witnesses appear alongside their signatures.

[5] The parties are in agreement that the conditions of letting and manuscript offer together constituted an offer to lease the farms. They are further in agreement that that offer was accepted. The parties disagree, however, as to the import of the letting; the pursuers contend that the two farms were let to George Wilson and George Sinclair Wilson in common, whereas the defenders contend that Milton was let to George Wilson and Mains to George Sinclair Wilson.

[6] The pursuers, as I have mentioned, aver that George Wilson and George Sinclair Wilson offered for both farms as tenants in common, and that offer was accepted. Their averments continue as follows. Following the letting of the farms in 1961, George Wilson resided at the farmhouse at Milton and George Sinclair Wilson resided at the farmhouse at Mains. The lease was nevertheless to George Wilson and George Sinclair Wilson as tenants in common. Demand for rent was made by a single rent demand. Payment of rent was made by way of one cheque. There was no provision in the lease for succession on survivorship. The pursuers go on to aver that, when George Wilson died, in 1977, no steps were taken to transfer his part of the tenancy to any other party in terms of section 16 of the Succession (Scotland) Act 1964 and sections 20 and 21 of the Agricultural Holdings (Scotland) Act 1949. The tenancy accordingly terminated at that point. Thereafter, the firm of G & G Wilson, the first defenders, occupied and farmed both farms. The partners of the firm at that stage were George Sinclair Wilson, the second defender, and his wife, Mrs Marion Wilson. The pursuers aver that rent was demanded of and paid by the firm. In these circumstances the pursuers contend that a new lease was constituted between the then landlord, the pursuers' father, and the firm as tenant. The firm of G & G Wilson continued in occupation as tenants of the farm paying the rent demanded of them. On 16 December 1996 agents for G & G Wilson wrote to agents for the pursuers expressing a wish that George Graham Wilson, the third defender, should be added as a named party to the lease. The letter included a statement by the agents for G & G Wilson that the present lease was in the name of the firm. The pursuers aver that no consent was given to that request as negotiations began about the possible sale of Dellavaird to the defenders. Subsequently, on 7 November 2001, the firm of G & G Wilson applied for the appointment of an arbiter to determine questions relating to the obligations of the landlord in relation to fixed equipment on the holding. The pursuers aver that in the statement of case for the tenant, lodged in December 2001, it was stated that the tenant was a firm in which the partners were currently George Sinclair Wilson, Mrs Marion Wilson and George Graham Wilson. On the basis of that statement, they aver that George Graham Wilson must have been assumed as a partner in the firm at some point after 27 January 2001. I note that the document referred to, the statement of case for the tenant, states as follows:

"The Tenant is constituted by a Contract of Partnership between George Sinclair Wilson and Mrs Marion Wilson dated 27^th February 1974 and George Graeme (sic) Wilson has subsequently been assumed".

On that basis, the pursuers aver that any lease between themselves and the firm of G & G Wilson, with George Sinclair Wilson and Mrs Marion Wilson as partners, came to an end on the assumption of George Graham Wilson as a partner. Subsequently, the pursuers aver, a minute of amendment was lodged in the arbitration in which it was stated that the tenant was George Sinclair Wilson, as sole tenant.

[7] The defenders' averments are as follows. In 1961 the two farms were to be let to two different individuals. At that time George Wilson and George Sinclair Wilson were not partners. Nevertheless the two farms were farmed as one unit, by both George Wilson and George Sinclair Wilson. In due course George Wilson and George Sinclair Wilson entered into a partnership and farmed under the name of

G & G Wilson. Relations with the landlord's factor were dealt with by George Sinclair Wilson, who would telephone the factor or go to see him when improvements were required on the farm. He paid the rent personally, and discussed matters with the factor when he attended to pay the rent. The rent demand and correspondence were addressed to G & G Wilson or G & GS Wilson. The landlords and tenants treated the holding as one unit in respect of rent demands, notwithstanding the conditions of let. The rent was tendered by way of one cheque and there was only one demand. In 1974 George Wilson retired from the partnership and George Sinclair Wilson and Mrs Marion Wilson, his wife, began farming as a partnership under the firm name of G & G Wilson. The factor was advised of that fact on the next occasion when rent was tendered. That would have been in May 1974 at the latest. George Wilson died in 1977, and George Sinclair Wilson telephoned the factor to tell him. The landlords continue to demand payment of rent from "G & G Wilson". Against that background the defenders contend that on the death of his father George Sinclair Wilson became the sole tenant of the subjects. He was already the tenant of Mains of Dellavaird and because he occupied and farmed Milton of Dellavaird in the full knowledge of the landlord and paid rent for it he became tenant of Milton. The defenders further contend that through their actings, including receiving rent, the pursuers are personally barred from asserting that George Sinclair Wilson is not the tenant of the whole subjects. As an alternative, the defenders contend that, even if the 1961 tenancy did not continue, a new tenancy was created by virtue of the occupation of Milton. The defenders then go on to aver that in 2001 George Graham Wilson, the son of George Sinclair Wilson and Mrs Marion Wilson, became a partner in G & G Wilson. If that firm were tenants at that time, the pursuers are personally barred from insisting that the partnership is at an end. Alternatively, the defenders aver that the contract of lease entered into was between the landlords and the house under all the changes that it might undergo. In these circumstances the defenders contend that the pursuers are not entitled to the remedies sought in the present action.

[8] The defenders originally contended that the subject matter of the present action was a question or difference between the landlord and tenant of an agricultural holding which required, under section 60 of the Agricultural Holdings (Scotland) Act 1991, to be determined by arbitration. That issue was appointed to debate. On 18 October 2002, Lord Macfadyen repelled the defenders' plea-in-law that the cause should be sisted for arbitration. Both parties have tabled preliminary pleas to the relevancy of the other side's averments and the defenders have a preliminary plea to the competency of the action. The case was appointed to a further debate to allow argument on those pleas. At that debate, the defenders contended, first, that the action was incompetent in that it was an action in the Court of Session containing a conclusion for removing unsupported by a declarator. Secondly, the defenders argued that the action was irrelevant because the pursuers did not aver that they had given notice to remove. Thirdly, the defenders contended that, on a proper construction of the pursuers' averments, including the conditions of letting and manuscript offer, the sole tenant of Mains since 1961 was George Sinclair Wilson and the sole tenant of Milton was now George Sinclair Wilson as successor to his father. The present action, directed against a former partnership and its members, was accordingly irrelevant. The pursuers contended that the conclusion for removing in the present action was ancillary to conclusions for declarator, with the result that it was competent. No notice to remove was required, because the pursuers averred that the lease had come to an end by virtue of the termination of the partnership between George Sinclair Wilson and Mrs Marion Wilson; that caused the lease to terminate by operation of law. Counsel further submitted that, on a proper construction of the conditions of letting and manuscript offer, the lease of both Mains and Milton had been in favour of George Wilson and George Sinclair Wilson as tenants in common. If that was correct, counsel submitted that the defences were irrelevant. The lease in favour of George Wilson came to an end during the 1970s, but no steps were taken to transfer his interest to a successor. Thereafter, it was clear as a matter of law that George Sinclair Wilson could not be the current tenant of both farms, but that was the hypothesis on which the defenders' pleadings were primarily based. In any event, the defenders' averments regarding the period following George Wilson's retirement were consistent with the existence of a lease in favour of the firm of G & G Wilson. I will deal with each of these arguments in turn.

Competency
[9] Counsel for the defenders referred to the pursuers' third conclusion, which was for removing from the farm. He submitted that the conclusion was properly understood as a conclusion for removing, not ejection. There was no suggestion that the defenders had ever been squatters; they had had title to occupy the property, but it was said that their right had terminated when the partnership came to an end. A conclusion for removing was only competent in the Court of Session if it was accompanied by a conclusion for declarator of removing. In the present case, there was no such declaratory conclusion. Nor were the pursuers assisted by Rule of Court 45A.1; that rule did not deal with ordinary actions of removing, but with actions of ejection designed to remove squatters. Reference was made to Reid, The Law of Property in Scotland, para 153, Dobie, Sheriff Court Practice, p 28, Thomson & Middleton, Manual of Court of Session Procedure, pp 26-28, Maclaren, Court of Session Practice, pp 153-154, Maxwell, The Practice of the Court of Session, pp 100 and 354, Campbell's Trs v O'Neill, 1911 SC 188, Oliver & Son Limited, 1999 SLT 1039, Glasgow Airport Limited v Chalk, 1995 SLT (Sh Ct) 111, The Hoy Trust v Thomson, 2003 SLT (Sh Ct) 20, Middleton v Booth, 1986 SLT 450, Rankine, Leases, page 586, Gill, The Law of Agricultural Holdings in Scotland (3rd ed), paragraphs 21.01-21.02, Rotherwick's Trustees v Hope, 1975 SLT 186 and Michael v Carruthers, 1998 SLT 1179.

[10] In my opinion the pursuers' conclusion for removing is competent. I agree with counsel for the defenders that the present action involves removing rather than ejection. Ejection is, generally speaking, the remedy for recovery of possession of heritable property that is competent against persons who have never had right or title to occupy the property. If, however, the persons in occupation have had a right to occupy the property, but it is contended that that right has come to an end, the remedy that is used must be removing: Reid, The Law of Property in Scotland, para 153. In the present case it is clear that the defenders have, at one time at least, had a right to occupy Milton and Mains farms. I further agree with counsel for the defenders that an action containing a bare conclusion for removing must be brought in the Sheriff Court; authority to that effect is found in Dobie, Sheriff Court Practice, p 28, Thomson & Middleton, Manual of Court of Session Procedure, pp 27-28, Maclaren, Court of Session Practice, p 153, and Maxwell, The Practice of the Court of Session, p 100. The position is different, however, if the conclusion for removing can properly be regarded as ancillary to a declaratory conclusion. For this purpose, I do not think that it matters whether the declaratory conclusion is for declarator that the defenders are obliged to remove or for declarator of some other right that gives rise to the right to remove the tenant; examples are declarator that a lease has come to an end by operation of law or according to its contractual terms, or that the lease has been validly terminated by an act of the landlord. In my opinion the authorities and textbooks support the foregoing view. Thus in Campbell's Trs v O'Neill, supra, Lord Johnston refers (at 1911 SC 194) to cases "where the conclusion for removing is merely ancillary to a declarator of some right in the Court of Session". In Michael v Carruthers, supra, the pursuers sought production and reduction of a disposition and an order against the defender to remove from the subjects in question. Lord Hamilton held that such proceedings were competent. He stated (at 1998 SLT 1186F):

"As to the competency of proceedings for removing in the Court of Session, such are competent where the conclusion is (as here) subsidiary to a conclusion which seeks a remedy competent in that court".

In both Jardine-Paterson v Fraser, 1974 SLT 93, and Rotherwick's Trustees v Hope, supra, the conclusions were for declarator that a tenancy had come to an end and for removing. In neither case was it argued that the conclusion for removing was incompetent. Rankine, in his work on Leases, states (at p 586) that removing is competent in the Court of Session where the conclusion for removing "follows, is ancillary to, and carries into practical operation, conclusions for declarator or reduction". The same point is made by Lord Gill, in The Law of Agricultural Holdings in Scotland, at para 21.02, where it is stated that in Court of Session proceedings for removing, since a bare removing is not competent, it is customary to add a formal conclusion for declarator.

[11] In the present case, the first conclusion is for declarator that the now dissolved firm of G & G Wilson, comprising George Sinclair Wilson and Mrs Marion Wilson, were tenants of Milton and Mains. The second conclusion is for declarator that a lease between the pursuers and the now dissolved firm of G & G Wilson came to an end on the assumption of George Graham Wilson as an additional partner of the firm. The third conclusion is for removing. It is clear in my view that the third conclusion follows from and is properly to be regarded as ancillary to the first and second conclusions. It is clear, too, that there is substance in the declarators that form the basis for the first and second conclusions, as the identity of the tenant and the question of whether the lease has terminated form the main points of dispute between the parties. In these circumstances the conclusion for removing is in my opinion clearly competent.

Need for notice to remove
[12] The second argument for the defenders was that notice to remove was required as a preliminary to the action for removing; in the present case, no such notice was averred by the pursuers. Reference was made to Reid, op cit, at page 153, Gill, op cit, at para 15.13 and British Rail Pension Trustee Company Limited v Wilson, 1989 SLT 340. In my opinion this argument proceeds upon a misconception of the basis of which the pursuers seek removing. The pursuers aver that the lease of both Mains and Milton came to be vested in the firm of G & G Wilson after the death of George Wilson in 1977. On that basis, the tenant was a partnership. The pursuers then aver that George Graham Wilson was assumed as an additional partner, with the consequence that the earlier firm of G & G Wilson, constituted as a partnership between George Sinclair Wilson and Mrs Marion Wilson, came to an end. The result was that the tenant no longer existed, and the lease necessarily terminated by operation of law. In these circumstances I am of opinion that no notice of removing is required. The critical point is that the dissolution of the partnership brings to an end the legal person who is the tenant. Unless the lease is regarded as being to the "house" (a matter discussed below), or there is a provision for assignation, either generally or to a successor partnership, there is thereafter no tenant. It follows that there can be no lease because one of the essential elements is missing. A notice to remove has no bearing on that situation, and is accordingly unnecessary. The relevant legal principles are found in Jardine-Paterson v Fraser, supra, at 1974 SLT 98, Moray Estates Development Company v Butler, 1999 SLT 1338, at 1343-1345, and Lord Gill's work on Agricultural Holdings at paragraphs 14.11-14.13.

Identity of tenants in 1961
[13] The third argument presented by counsel for the defenders was that, on a proper construction of the conditions of letting issued by the pursuers' predecessor in 1961 and the manuscript offer written on the conditions relating to Mains, George Wilson and George Sinclair Wilson had each taken the tenancy of one farm, Milton in the case of George Wilson and Mains in the case of George Sinclair Wilson. That argument was based on the construction of the manuscript offer. That document started with the words "Milton to George Wilson. Mains to Geo S. Wilson". In addition, the offer was for the "tenancies" of Mains and Milton; the use of the plural indicated that the two farms were to be separately tenanted. The pursuers' pleadings, however, were based on the proposition that the lease was to George Wilson and George Sinclair Wilson as tenants in common. That was not borne out by the terms of the manuscript offer; consequently the pursuers' pleadings were irrelevant. Counsel for the pursuers argued that the proper construction of the manuscript offer was that both George Wilson and George Sinclair Wilson would take up the two farms jointly, as a single unit. A number of factors supported that conclusion. First, although the defenders averred that George Wilson and George Sinclair Wilson were not partners in 1961, only one manuscript offer was signed, by both men. Thus one offer was made on behalf of two individuals. Secondly, the offer was for the tenancies of the two farms; the farms were offered separately by the landlords, but a single offer was made for them. Thirdly, the rent offered was for both farms. Fourthly, one of the additional conditions related to Mains only. That did not fit well with the notion that each farm was to be the subject of a separate offer. Fifthly, after the farms were let, a single rent demand was made by the landlords and a single rent payment made by the tenants. Thus the two farms were treated as one unit.

[14] Neither party suggested that evidence might be relevant to explain the genesis and aim of the transaction or transactions entered into in 1961; both accepted that a decision could now be reached on the proper construction of the conditions of letting and manuscript offer the basis of the terms of those documents alone. The only reference to extraneous circumstances was the pursuers' argument that rent demands and rent payments after 1961 indicated that there was a single letting. In general, however, it is not permissible to construe a contract by reference to the subsequent actings of the parties: Gloag, Contract, 375-376; McBryde, Contract, 8-14 --8-16. The only general exceptions to this rule appear to be those relating to contracts of ancient date and contracts where there is a patent ambiguity: ibid. In the present case I do not think that there is any patent ambiguity in the contract, and I do not therefore regard evidence of actings subsequent to the date of the contract as relevant. I am accordingly able to reach a decision on the proper construction of the contract on the basis of the conditions of letting and the manuscript offer.

[15] In my opinion the proper construction of the contract entered into in 1961 is that there was a single lease of the farms of Milton and Mains to George Wilson and George Sinclair Wilson as tenants in common. The two sets of conditions of letting and the manuscript offer appended to one of them, taken together, constituted an offer to take a lease. That offer was accepted by the conduct of the landlords in permitting entry to be taken in terms of the offer. The offer was clearly a single offer. The words making the offer are found in the opening part of the manuscript offer: "We hereby offer for the tenancies of Mains & Milton of Dellavaird on the conditions of letting... at a rent of £4 per acre for both farms". That offer is signed by both George Wilson and George Sinclair Wilson. There is nothing in the terms of the offer itself to suggest that two tenancies were to be granted; the offer is rather for both farms taken together, and indeed the offer refers expressly to both farms. The only part of the manuscript offer that may suggest the contrary is the wording found at the top, above the address: "Milton to George Wilson. Mains to Geo S. Wilson". That wording does not form part of the text of the document, which would be expected if two distinct tenancies were to be created, each in favour of a separate tenant. Indeed, if it had been intended that two tenancies should be granted, one of each farm, it would be more natural to find either that a separate offer was appended to each set of conditions of letting or that the fact of two tenancies was stated clearly in the wording of the offer. Moreover, the wording found at the top of the manuscript offer is readily explicable on the basis that the relative farmhouses were to be occupied by the two tenants in the manner stated. In addition, the rent is described in the manuscript offer as "£4 per acre for both farms". That tends to suggest that there is to be a single lease of both farms. In all the circumstances I am of opinion that the natural, and indeed obvious, interpretation of the manuscript offer is that there was a single offer made by both George Wilson and George Sinclair Wilson to take both farms as tenants in common.

Identity of tenant after retirement and death of George Wilson
[16] The present defences are based principally on the proposition that in 1961 two separate leases were concluded, one for each farm. For the reason stated in the last paragraph, I have rejected that proposition. That does not conclude the dispute between the parties, however. The parties are in agreement that George Wilson died in 1977. No provision for survivorship appears from the terms of the conditions of letting and the manuscript offer, and no such provision is averred by the defenders. Consequently George Wilson's share of the tenancy could have been transferred under either section 16 of the Succession (Scotland) Act and 64 or section 20 or 21 of the Agricultural Holdings (Scotland) Act 1949. The pursuers aver that no steps were taken to do so. The defenders deny that, by means of a general denial, but they do not aver what steps were taken, and indeed their pleadings in general are contrary to any suggestion that George Wilson's share of the tenancy was transferred to any other person. In these circumstances I conclude that no such steps were in fact taken. The result would be, as the pursuers aver, that George Wilson's part of the tenancy came to an end.

[17] The pursuers aver that thereafter the firm of G & G Wilson, comprising George Sinclair Wilson and his wife Mrs Marion Wilson, occupied and farmed both Mains and Milton. They further aver that rent was demanded of, and paid by, the firm. On that basis, they seek to draw the inference that a new lease was constituted, with the firm as tenant. The defenders in their defences accept that George Sinclair Wilson and Mrs Marion Wilson farmed as a partnership under the firm name of G & G Wilson, and that the landlord's factor was advised of that when the rent was tendered. The defenders further aver that the landlords continued to demand payment of rent from "G & G Wilson". They contend, however, that George Sinclair Wilson became the sole tenant of the whole subjects of let. (Their pleadings state that on the death of his late father the pursuer became the sole tenant, but that is clearly an error). That is said to have arisen on two distinct bases. First, the defenders claim that George Sinclair Wilson was already the tenant of Mains. I have, of course, already rejected that contention. Secondly, the defenders make the following averment:

"By virtue of the fact that he occupied and farmed Milton in the full knowledge of the Landlord and paid a rent for the same he became tenant of Milton".

Although this averment does not apply to Mains, if in fact a new tenancy of Mains arose during the 1970s the position of both Mains and Milton would be identical. The averment quoted involves two propositions: first, George Sinclair Wilson occupied and farmed Milton, and secondly George Sinclair Wilson paid the rent for Milton. The first of these propositions, however, is contradicted by an earlier averment to the effect that, after George Wilson retired from the partnership, George Sinclair Wilson and Mrs Marion Wilson "commenced farming as a partnership under the firm name of G & G Wilson". It is further averred that the landlord's factor was advised of that fact when rent was next tendered. The partnership must have been farming somewhere, and the obvious inference from the defenders' averments is that it was farming at both Mains and Milton. On that basis the actual occupation of Milton, and indeed Mains, appears to have been by the partnership. So far as the second proposition is concerned, the defenders aver that the landlords had continued to demand payment of rent from "G & G Wilson". They also clearly accept that such rent was paid, but there is no suggestion that the payments of rent were made expressly by George Sinclair Wilson on his own behalf. If that is so, the payment of rent is likely to have been in accordance with the rent demands, that is to say, on behalf of "G & G Wilson", which by this time was the partnership; the defenders expressly aver that the landlord's factor had been told about the partnership. The rent demands applied to the whole subjects of let, and consequently paying rent in accordance with those demands leads to the inference that the whole subjects were leased to the partnership. If that is so, it is difficult to see how the inference can be drawn that the landlords accepted George Sinclair Wilson as the tenant of Milton, or indeed of Mains. The natural inference is that they regarded the partnership as the tenants of both farms, and accepted rent from the partnership on that basis.

[18] On that basis, the defenders' averments about the identity of the tenant of the two farms after the retirement of George Wilson do not contradict the pursuers' averments. In these circumstances I draw the inference from the defenders' averments that the tenant of both Mains and Milton after the 1970s was the firm of G & G Wilson, that firm being a partnership between George Sinclair Wilson and Mrs Marion Wilson. That is sufficient to entitle the pursuers to declarator in terms of the first conclusion of the summons. The defenders aver that George Graham Wilson was assumed as a partner of the firm in 2001. The effect of that, however, was to dissolve the firm, and that in turn brought the lease to an end by operation of law; the relevant legal principles are discussed in paragraph [10] above. That entitles the pursuers to declarator in terms of the second conclusion of the summons and decree of removing in terms of the third conclusion of the summons. Consequently, subject to four further matters raised in defences, I conclude that the pursuers are entitled to decree de plano in terms of the summons.

[19] The four additional matters raised in the defences are as follows. In the first place, the defenders contend that through their actings, including receiving rent, the pursuers through their predecessor as landlord are personally barred from asserting that George Sinclair Wilson is not the tenant of the whole subjects. In the second place, the defenders aver that following the retiral of George Wilson and his death George Sinclair Wilson continued to occupy the subjects and arrange for the payment of rent and other outgoings; the existence of a partnership operating on the holding did not alter the true identity of the tenant. In the third place, the defenders aver that in 2001 George Graham Wilson became a partner in G & G Wilson, and that if at that time the firm were the tenants the pursuers were personally barred through the actings of the landlords from insisting that the partnership was at an end. In the fourth place, on the same hypothesis, that the firm were the tenants, the defenders contend that the contract of lease entered into by the parties was between the landlords and the house under all the changes that it might undergo.

Personal bar
[20] The defenders' first assertion of personal bar seems to relate to the period following the retirement and death of George Wilson when, according to the defenders, George Sinclair Wilson became the sole tenant of the whole subjects of let. The facts averred in support of personal bar appear to be those discussed in paragraph [15] above, namely that George Sinclair Wilson occupied and farmed both Mains and Milton, the former as the original tenant and the latter by virtue of a new tenancy; that this was done in the full knowledge of the landlord; and that George Sinclair Wilson paid the rent for the two farms. I have already indicated that these averments are contradicted by other averments made by the defenders, from which I draw the inference that the occupation was by the partnership and rent was paid on behalf of the partnership. On that basis, the averments of fact that must form the basis for this assertion of personal bar do not exist. In addition, there are no averments to suggest that the defenders in any way altered their position in reliance on the landlord's actings. This argument must accordingly be rejected.

[21] The second assertion of personal bar relates to the period after 2001 when George Graham Wilson became a partner in the firm of G & G Wilson. It appears to be accepted by the defenders for the purposes of this argument that that would result in the constitution of a new partnership, which would clearly be the normal result of the assumption of a partner. The actings that give rise to personal bar must accordingly have taken place in and after 2001. There is no suggestion, however, that the pursuers allowed the new partnership to occupy the farm and accepted rent from the new partnership in the knowledge that George Graham Wilson had been assumed as a partner and that accordingly a new partnership had been constituted. Equally, there are no averments that the defenders altered their position in any way on the faith of the pursuers' actings at this time. There is accordingly no basis in fact for this assertion of personal bar, which must therefore be rejected.

Existence of partnership as affecting identity of tenant
[22] The third of the defenders' additional contentions is that, following the retiral and death of George Wilson, George Sinclair Wilson continued to occupy the subjects of let and to arrange for the payment of rent, and that the existence of a partnership operating the holding did not alter the true identity of the tenant. It is undoubtedly true that the tenant of a farm may carry on business on the farm through a partnership, in such a way that the identity of the tenant is not affected. That assumes, however, that the tenant has been identified. The problem in the present case is the identification of the tenant following the retiral and death of George Wilson. The defenders accept in their pleadings that the partnership occupied the two farms, and that the rent demands, which were paid, were addressed in the name of the partnership. In these circumstances I am of opinion, as indicated above, that the clear and natural inference is that the partnership was accepted as tenant, not George Sinclair Wilson. For that reason I do not think that there is any substance in this argument.

Lease to the "house"
[23] The last contention for the defenders was that the lease was to the house. A lease to the house is a lease to a partnership, or more accurately a succession of partnerships, as they may be constituted from time to time. The concept of a contract with the house is clearly established in Scots law; a full discussion is found in Moray Estates Development Co v Butler, 1999 SLT 1338. The existence or otherwise of a contract with the house depends on the intention of the parties. In the case of a professional partnership or an ordinary commercial partnership, it is relatively easy to conclude that the parties to a contract had such an intention, because that reflects the common practice and understanding of those who deal with such firms: Inland Revenue v Graham's Trs, 1971 SC (HL) 1, at 20 per Lord Reid. In the case of an agricultural partnership, however, the position is otherwise. The reason is stated by Lord Maxwell in Jardine-Paterson v Fraser, supra, at p 98:

"An agricultural lease excluding assignees obviously has a strong element of delectus personae and I think that this applies at least equally to a deed of consent to an assignation of such a lease. It is scarcely conceivable that the landlord, having excluding assignees, would have intended to assign to any persons who might be enabled to become partners in a continuing partnership by some adjustment of the partnership deed, as it were, behind the landlord's back".

This point is developed by Lord Hamilton in Moray Estates Development Co v Butler, supra. He comments that a landlord who lets agricultural subjects to a partnership is, or at least in 1964 would have been, closely concerned with the individual partners. Thereafter, after quoting from and accepting as accurate the first part of the passage that I have just quoted from Lord Maxwell's opinion in Jardine-Paterson, he continues (at p 1344):

"The fact that statutory provisions concerning agricultural holdings have in certain circumstances restricted the capacity of landlords to prevent transmission of leases to others than the original tenant does not, in my view, diminish the accuracy of those statements. In relation to the assumption of one or more new partners in the firm comprising the other party, a landlord of agricultural subjects is likely to have a more immediate concern than, say, a client of a large firm of solicitors engaged in an ongoing conveyancing transaction or a customer of a commercial partnership with which he has a contract for the sale or for the purchase of goods. Each case requires to be considered in its own circumstances; but an agricultural lease is not, as subject matter, a very obvious candidate for a contract with a house".

I respectfully agree with those views. In the present case, therefore, the presumption must be that the lease concluded with the firm of G & G Wilson following the retirement of George Wilson was in favour of the firm as then constituted, and not in favour of the firm as it might be constituted from time to time. I can find nothing in the defenders' averments to displace that presumption, or even to suggest that the presumption might be displaced. Counsel for the defenders relied on the fact that the landlords had accepted the firm as tenants in place of George Wilson and George Sinclair Wilson as individuals, and sent their rent demands to "G & G Wilson", as they had prior to the retirement of George Wilson. That clearly involved a deliberate decision on the landlords' part, however; according to the defenders' averments the landlords' factor was told exactly what was happening, and the landlords obviously agreed to the changes, either expressly or impliedly. It does not follow that the landlords were willing to agree that the lease might transmit to a successor firm. The partners in such a firm need not be members of the Wilson family; indeed, they might be individuals who knew nothing whatsoever about farming. In these circumstances I am of opinion that no relevant case of a lease to the house has been stated.

Conclusion
[24] In the foregoing circumstances I am of opinion that the remedy of removing sought by the pursuers is competent, that the pursuers' case is relevant, and that the defences are irrelevant. I will accordingly sustain the first, second, third and sixth pleas-in-law for the pursuers, repel the third to eighth and eleventh pleas-in-law for the defenders, and pronounce decree de plano for declarator in terms of the first and second conclusions of the summons and removing in terms of the third conclusion of the summons.