United Kingdom House of Lords Decisions

Clydesdale Bank Plc v. Davidson and Others (Scotland) [1997] UKHL 55 (16th December, 1997)

LORD GOFF OF CHIEVELEY

My Lords,

          I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Clyde, and for the reasons he gives I would dismiss this appeal.

LORD JAUNCEY OF TULLICHETTLE

My Lords,

          I have had the benefit of reading in draft the speeches prepared by my noble and learned friends Lord Hope of Craighead and Lord Clyde. I agree with their reasoning and conclusions that the appeal should be dismissed. I propose to add only a few words of my own on what appears to me to be the critical issue in this appeal, namely whether the Minute of Lease of 11 January 1977 is truly a lease which attracts the provisions of the Agricultural Holdings (Scotland) Act 1991. I start with two general propositions, namely,:- (1) that each pro indiviso proprietor of heritage has a real right to possession of the whole subjects jointly with his co-proprietors (Erskine II, vi, 53; Bell's Principles 10th ed. (1899) paragraph 1072), and (2) that a lease involves putting the tenant into possession of the subjects and maintaining him there (Rankine on Leases, 3rd ed. p. 200). Unless there is a specific provision to the contrary there will be implied, if not expressed, a condition entitling the landlord to terminate the lease and remove the tenant in the event of a material breach of contract by the latter. The landlord will also have the right to remove the tenant from the subjects at the expiry of the stipulated period or such further period as has been agreed between the parties expressly or impliedly or imposed upon them by statute. Rankine (op. cit.) at p. 1 defines a lease as:

 "A lease or tack is a contract of location (letting to hire) by which one person grants and another accepts certain uses, current or definitive, or the entire control, of lands or other heritages for a period or periods, definite or indefinite, or even in perpetuity, in consideration of the delivery by the grantee of money or commodities or both, periodically or in lump or in both of these ways."

It is in my view implicit in this definition that a tenant's right to possession whether it be of particular subjects or of rights such as mineral or sporting, derives entirely from the lease granted to him and terminates on the expiry of that lease.

          In Price v. Watson 1951 SC 359 one pro indiviso proprietor of heritable property sought summarily to eject other pro indiviso proprietors from part of the property. Lord Keith, in a judgment doubting the need to sist the action of ejection as proposed by the majority of the First Division, but which has stood unchallenged for 46 years said, at p. 366:-

 "That it can be used against a co-owner who has a right to possess, flowing from his property title, is, in my opinion, a plain impossibility. A co-owner, it is true, has not an exclusive right of possession, unless by agreement with his co-owners, but he may possess in a variety of ways. He may allow a co-owner to have sole natural possession in return for a compensating money payment; . . .

 "Nowhere will a trace be found in textbook or decision that a dispute about possession between co-owners can be solved by an action of ejection, though down the centuries countless such cases must have occurred."

I consider that Lord Keith's observations are equally applicable to an action of removing as to the action of ejection before him. The critical matter is that as long as the defender in the action retains his pro indiviso proprietorship he can only be deprived of possession by an action of division and sale. It is noteworthy that when Lord Keith refers to one co-owner allowing another to have sole possession on payment he does not describe the arrangement as a lease, no doubt for the very good reason that it is not.

          The appellant relied strongly on Pinkerton v. Pinkerton 1986 S.L.T. 672 in which Lord Mackay of Clashfern, sitting in the Outer House, held inter alia that an agreement by A. to let a farm to himself, his wife and two sons was a valid lease which gave security of tenure. Lord Mackay, at p. 676, after concluding that the Landlord and tenant were sufficiently different for a valid agreement between them to be possible, rejected the pursuer's contention that if it was a valid agreement it was not a lease, holding that a case in which A. was the Landlord and A, B, C and D were the tenants was not inconsistent with the definition of lease given by Professor Rankine in the passage at page 1 to which I have already referred.

          My Lords, I consider that Pinkerton can be distinguished from the present case in two material respects, namely:- (1) the right of three of the four persons constituting the tenant to possess the farm derived solely from the agreement, and (2) termination of the agreement voluntarily or by a successful action of removing at the instance of the landlord would return to him exclusive possession of the farm with no possessory rights remaining in the three other persons.

          In the present case prior to 11 July 1977 the appellant enjoyed a real right to possess the subjects jointly with the other pro indiviso proprietors. The minute of that date neither superseded nor altered that real right. What it did was to confer a personal right on the appellant to enforce the obligation by his co-proprietors to refrain from exercising their rights to joint possession in return for compensatory payments. When the minute ceases to have effect the appellant's right to possession qua proprietor continues unchanged but his co-proprietors are no longer disabled from jointly exercising their possessory rights. An agreement having such effect is not a lease. I would therefore dismiss the appeal.

LORD LLOYD OF BERWICK

My Lords,

          I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Clyde, and for the reasons he gives I, too, would dismiss this appeal.

LORD HOPE OF CRAIGHEAD

My Lords,

          The question in this case is whether it is possible for the pro indiviso proprietors of heritable property to create a lease over it in favour of one of their own number. As the question has arisen in the context of a dispute with a third party who is seeking to exercise the rights over the heritable property of a heritable creditor, its answer will not be found merely by examining the contractual relationship between the pro indiviso proprietors. Issues of property law are involved here also as, in order to be effective in a question with a third party, the agreement must have conferred on the party in possession who seeks to found upon it the protection of a real right in the subjects as a tenant under a lease: see Leases Act 1449, c.6: Stair Memorial Encyclopaedia, vol. 18, Property, para. 5(5). As Rankine on Leases, 3rd ed., p. 1 states, the contract is in its essence purely personal. But, in order to obtain security of tenure under the Agricultural Holdings (Scotland) Act 1991, he must have acquired what Gill, The Law of Agricultural holdings in Scotland, 2nd ed., paragraph 55 has described as the real right of tenancy. In Millar v. McRobbie 1949 SC 1, 5 Lord President Cooper said that the issue in that case was whether the defender's personal right against the former proprietor of the lands with whom he contracted had been perfected by possession so as to be valid in a question with the pursuer, who was the singular successor of the former proprietor. The same test must be satisfied in this case in a question with the Bank as heritable creditor.

          I have had the benefit of reading in draft the speech which has been prepared by my noble and learned friend Lord Clyde. I agree with it, and for the reasons which he gives I also would dismiss the appeal. But, as there was a difference of view in the Second Division and the point is one of general interest on which views elsewhere have not been unanimous, I should like to add some observations of my own in order to explain why I consider that the Minute of Lease did not create a lease over the subjects which is capable of conferring on the appellant the real right of tenancy.

          As to the contractual relationship between the pro indiviso proprietors I do not think that the case presents any great difficulty. There is ample authority to the effect that a person cannot enter into a contract with himself: Church of Scotland Endowment Committee v. Provident Association of London Ltd. 1914 S.C. 165; Kildrummy (Jersey) Ltd. v. Inland Revenue Commissioners 1991 S.C. 1. For one individual to grant a lease in favour of himself over his own property is therefore a legal impossibility. But in the present case the agreement does not take that form. Instead what has happened is that three individuals acting together have entered into a contract with one of their own number. There is no doubt that pro indiviso proprietors of heritable property are entitled to agree among themselves about the use and management of the property. As Professor Bell has explained, one of the incidents of common property in which a right of ownership is vested pro indiviso is that the consent of all is required in all acts of management, alteration and disposal: Principles, paras. 1071-1072. Where their consent is given, it must follow that a binding agreement between them is constituted. So I do not think that there can be any objection in principle to the creation of a binding agreement between them by which one of their number is to enjoy the exclusive possession of the property.

          Each of the pro indiviso proprietors is entitled to assert a right to exclusive possession of the property in a question with third parties on behalf of all the other owners of the common property. But there would seem to be no reason why they should not enter into an agreement among themselves that one of their own number is to be entitled to the exclusive possession of the property in a question with the other pro indiviso proprietors. In Price v. Watson 1951 SC 359,366 Lord Keith recognised that a co-owner may have an exclusive right of possession by agreement with his co-owners, whereby he will have the sole natural possession in return for a compensating monetary payment. The relationship between these parties will, for so long as the property remains in their ownership as pro indiviso proprietors and in the absence of an exercise of rights by their heritable creditors, rest entirely upon contract. The law of obligations will provide an answer to all questions which may arise between them as to the right of the preferred proprietor to continue to enjoy exclusive possession as against the other pro indiviso proprietors and his obligation to pay money to them in exchange for that right. The question as to whether the arrangement between them is a lease in the true sense of that term is of no practical importance, so long as matters remain on that footing and no third party is involved.

          In order to be effective in a question with a third party such as the Bank, however, the arrangement between the pro indiviso proprietors must have been one which was capable of conferring on the preferred proprietor a real right to continue to occupy the property which was separate from that enjoyed by him as one of the pro indiviso proprietors. Unless the right so created is a separate real right, it will be no more effective in a question with the creditor under a standard security subsequently granted by the pro indiviso proprietors than the right which he already has in his capacity as one of their number over the same property. The only way in which that can be done, short of transferring to him the right of ownership as sole proprietor, is to make him a tenant of the property under a lease. This is a common enough arrangement where the owner of heritable property wishes to confer on another person the exclusive right to occupy the subjects while retaining his own right of ownership. There is no doubt that pro indiviso proprietors may grant a lease in favour of third party in just the same way as a person who is the sole owner of the property. It is much more difficult to see how this can be done where the person to whom the lease is to be granted is one of their own number, and he is to remain at one and the same time both the tenant of the property and one of its pro indiviso proprietors.

          The fundamental objection to the argument that the arrangement is effective to confer on him a real right as a tenant of the property under a lease is that, as one of the pro indiviso proprietors, he already has a real right in the property as one of its heritable proprietors. The objection arises in this way. In the first place it is not possible for a person to have two real rights in the same property at the same time. This is because of the principle of confusio, by which the lesser right is absorbed into the greater right and is extinguished. The real right of a pro indiviso proprietor extends over the entire property, which is owned by each of the proprietors in solidum: Grant v. Heriot's Trust (1906) 8 F. 647, 658, per Lord President Dunedin. If he were to take possession as tenant he would, on taking possession, acquire a real right over the same property. But that real right cannot exist separately from his right of ownership. As it is the lesser right, it would from the outset have been absorbed into, and be indistinguishable from, the greater right of ownership. On this analysis the only additional rights which the appellant acquired under the arrangement, as he retained his real right in the property as one of the pro indiviso proprietors, were the personal rights which resulted from his contract with the other proprietors.

          In the second place-although this is perhaps just another way of viewing the same point-an action of removing at the end of the lease would not be effective to terminate his right to continue in occupation of the property. The termination of his right to continue in occupation as the tenant of it would be pointless and ineffective, as he has a right to continue in occupation of it as one of its proprietors. It would not be open to the court to grant an order for his removal from property which he was entitled to occupy as one of the pro indiviso proprietors. The same reasoning would apply to an attempt by the other pro indiviso proprietors to eject him from the property. In Price v. Watson 1951 SC 359, 366 Lord Keith said that an action of ejection by one co-owner against another co-owner who had a right to possess flowing from his property title was, in his opinion, a plain impossibility. One of the cardinal elements of a lease is its duration, that is to say the period during which the tenant is to have the exclusive right to occupy the property: Gray v. University of Edinburgh 1962 SC 157, 162. In this case the Minute of Lease contained a clause which fixed the duration, but its effect was to specify the duration of the contractual arrangement between the co-proprietors. It did not, and could not, set any limit on the appellant's right to continue to occupy the property, as this depended upon his right of ownership as one of the pro indiviso proprietors. It does not seem to me therefore to be possible to say that the arrangement conferred on the appellant a real right as tenant under a lease of the property, even although it was sufficient to allow the appellant to enjoy the exclusive possession of it in a question with the other pro indiviso proprietors.

          For these reasons I consider that the appellant is not entitled to claim protection as a tenant under the Agricultural Holdings (Scotland) Act 1991 in answer to the claim made by the pursuers under the standard security.

LORD CLYDE

My Lords,

          On 11 January 1977 the appellant Alexander George Davidson and his parents executed a deed described as a Minute of Lease between the three of them (referred to as "the Landlords") and the appellant (referred to as "the Tenant"). It bore to relate to the farms and lands of Corsekelly and Gowanhill and lands known as Cooper's Croft. It began with a narrative that the appellant had occupied the lands in question for a number of years as Tenant of the Landlords. It then purported to let the lands to the appellant for three years from Whitsunday 1976 at a rent of £4000 per annum. It further reserved to the Landlords the right to shoot game, wild fowl, hares and rabbits, all angling rights, all mineral rights subject to compensation and subject to payment for damage to crops, all plantations and trees with right to cut and remove them subject to paying for damage, and a power to resume land for various purposes.

          The lands referred to had formerly been owned by a partnership which consisted of the appellant and his parents. By virtue of a Minute of Agreement dated 25 March 1969 the partnership was dissolved with effect from 1 June 1968. The lands were thereafter conveyed to the appellant and his father and mother as pro indiviso proprietors in the proportions of one half to the appellant and one quarter to each of his father and his mother.

          On 24 February 1977 the appellant together with his parents granted a Standard Security in favour of the Clydesdale Bank over the lands of Gowanhill of which they were the pro indiviso heritable proprietors. In 1985 they granted a further Standard Security in favour of the Bank over the farm of Corsekelly and certain other lands, including the lands known as Cooper's Croft. Each of these Standard Securities was granted in security of sums due to the Bank by virtue of a Bond which the appellant had granted in its favour.

          On about 26 October and 30 November 1988 the Bank served on the appellant calling-up notices in respect of each of the Standard Securities. The appellant failed to make full payment of the sums then demanded and was accordingly in default under Condition 9(1)(a) of the standard conditions set out in Schedule 3 to the Conveyancing and Feudal Reform (Scotland) Act 1970 which applied to the standard securities. The Bank was then entitled to exercise its rights under the securities, including the right to sell the lands. On 22 February 1989 the estates of the appellant were sequestrated. A Permanent Trustee was appointed on his sequestrated estates on 17 March 1989 and since then the Trustee has been in possession of the lands and managing the farms. In about September 1989 the Bank raised two actions in the Sheriff Court craving in each case, firstly, a declarator of its right to enter into possession of the lands covered by the two respective standard securities and, secondly, an order ordaining the appellant and others to remove from the respective lands. In his defences to both actions the appellant maintained that he was entitled to continue to occupy the farms and lands in question as an agricultural tenant under the Minute of Lease. One of the two actions, namely the one relating to Corsekelly, has been for convenience taken as the lead action. The Sheriff, the Sheriff Principal and the majority of the Second Division have held the lease to be a nullity. The appellant has appealed to your Lordships' House.

          The single question thus raised in the case is easy to formulate, but not altogether easy to answer. There is no doubt but that co-proprietors may together grant a lease of the lands which they own in common to a third party. But can a valid lease of lands be constituted by co-proprietors in favour of one of their number? Differing views have been expressed on this question. Professor Reid (in the Stair Encyclopaedia Volume 18 paragraph 28) and Professor Gordon (Scottish Land Law, paragraph 15-15) have suggested that such a lease might be validly constituted. Lord Gill in The Law of Agricultural Holdings in Scotland (2nd ed.) para 35 states that such a lease is probably invalid. In Bell's Executors v. Inland Revenue 1987 S.l.T. 625 Lord President Emslie, with whose opinion the other members of the court agreed, regretted that in that case that the Inland Revenue had decided at the outset not to argue the point that the lease was a nullity because, as his Lordship observed, "the point may well be sound."

          The question raises issues relating to the law of contract and issues relating to the law of property. It is important to make that distinction and examine separately both aspects of the problem. I turn first to the contractual aspect. It arises in this way. Any one of the common proprietors may enjoy the use of the whole extent of the property along with the others. He can do that by virtue of his right and title as a co-proprietor. But it is argued that he cannot obtain an exclusive right of occupation through a contract with his other co-proprietors because that would involve him contracting with himself. That consideration forms part of the reasoning which led the majority of the judges in the court below to regard the purported lease as a nullity.

          It is well established that no person may enter into a contract with himself. If authority is needed for that proposition it can be found most directly in Church of Scotland Endowment Committee v. Provident Association of London Limited 1914 S.C. 165. The same proposition holds good in English law. To use the language of Stuart V.-C. in Grey v. Ellison (1859) 1 Giff. 438, 444 it is whimsical that a man should grant a lease to himself. In Lord Blantyre v. Dunn (1858) 20 D. 1188 the tenant of lands under two long leases acquired the ownership of them. While there were differences of opinion expressed on the question whether confusio operated to extinguish the rights and obligations or only effected a temporary suspension of them it was perfectly clear that the subordinate right of tenancy had merged with the higher right of property.

          It is of course possible to create a valid lease where one of the parties is a member of a group comprising the other party, where that group constitutes in itself a separate person in law. Thus a partnership may validly grant a lease to an individual who is a member of the partnership. As was held in Mair v. Wood 1948 SC 83, since a partnership is a legal persona distinct from the individuals who compose it, there is no conflict with the doctrine of confusio in allowing a partner to take a decree against the firm of which he is a partner. As Lord President Cooper pointed out (p. 87) "the partner's liability for a firm debt is not a primary liability, and it is one in respect of which he enjoys a right of relief against his co-partners."

          In Barclay v. Penman 1984 S.L.T. 376 an attempt was made to establish that one of several proprietors of a house held it under a lease to him by all the proprietors and as a secure tenant with a view to resisting an action for division and sale. In response to an argument that no one could be creditor and debtor in the same obligation the defender sought to argue that the body of pro indiviso proprietors constituted a legal persona separate from each individual proprietor. That solution was held by Lord Stewart to be erroneous and he held that no lease had been created. The basis on which he proceeded was a consideration of the basic principle of multiple ownership that all of the proprietors must agree to any transaction involving the property except in cases of necessity. He held that that principle was inconsistent with the existence of a separate legal persona. A consideration of the possibility of distinguishing the identities of the creditor and the debtor in respect of the contractual rights and obligations involved was evidently not raised in the case. Counsel for the appellant sought to argue that the present case was closely analogous to a joint adventure. But analogy here will not suffice.

          Such an approach is in any event unnecessary. Looking at the matter as one of contract law it does not seem to me that there is the necessary coincidence of creditor and debtor to prevent effective rights and obligations from being created. Rights and obligations could be created between the appellant on the one hand and his parents on the other. As Lord Mackay of Clashfern pointed out in Pinkerton v. Pinkerton 1986 S.L.T. 672, 676:

 "If the only obligation arising in a contract is one in which A and others only if all acting together can exact something from A, it is I think clear that if A is unwilling to perform the obligation he will be unwilling to attempt to enforce it and there is no enforceable obligation created by such a provision."

So where an obligation is sought to be constituted as a joint obligation on two or more persons in favour of one of them it may not be an enforceable obligation. On the other hand, if it is constituted as a joint and several obligation on them, then one of them should be able to enforce it against the others. And where a right of exclusive possession can only be enjoyed with the consent and co-operation of several acting together, as is the case with co-proprietors, they should be able to create a valid right to exclusive occupation in favour of one of their number. The distinction between the identities of the respective parties to such an arrangement which saves it from the rule that a person may not contract with himself was noted by Professor Reid and Professor Gordon in the passages of their works to which I have already referred.

          There is then in my view no objection in law to the making of a contract between persons who are co-proprietors regarding the use or management of the common property on any terms which they may choose. There is nothing unlawful in their agreeing that one of their number should carry out some particular services for them all on the lands, such as, to take up one of the examples put forward by Lord McCluskey, gardening work. In such a case their liability would be in solidum. Nor would it be unlawful for them all to consent that one of their number should have an exclusive occupation of the lands for such period and on such terms as they may agree. Such consent could be express or even, in particular cases, implied.

          But while on the basis of a contractual arrangement among themselves co-proprietors may arrange for one of their number to have the sole occupation of the lands it is a distinct question whether such agreement can constitute a lease. It is at this point that I turn to consider the matter from the point of view of the law of property, and in particular the law with regard to common property.

          There is now an accepted distinction between "joint property" and "common property." But while a consistent nomenclature may now be expected it has to be noticed that the terms may be interchangeably used in older texts. The former holds where the co-owners are inter-related by some common bond such as a trust or an unincorporated association. In such a case the property is vested in them pro indiviso, but, as has been recognised in successive editions of Gloag and Henderson's The Law of Scotland, currently paragraph 40.35 in the 10th ed.:

 ". . .the owners have no separate estates but only one estate vested in them pro indiviso, not merely in respect of possession but also in respect of the right of property. The right of a joint owner accresces on his death to the others and cannot be alienated or disposed of either inter vivos or mortis causa."

On the other hand in the case of common property:

 ". . . each proprietor has a title to his own share which he may alienate or burden by his separate act. On the death of one of the common owners his share will pass under his will or transmit to his heirs."

          But while each co-proprietor may alienate his share without the consent of the other co-proprietors, matters of the use and disposal of the lands are matters in which they are all required to take part. The general rule was expressed by Professor Bell (Principles 1072) in these words:

 "Common property is a right of ownership vested pro indiviso in two or more persons, all being equally entitled to enjoy the uses and services derivable from the subject, and the consent of all being requisite in the management, alteration, or disposal of the subject."

          The reason which lies behind this is that the rights of each proprietor extend over the whole of the lands. The principle is, as Lord President Dunedin put it in Grant v. Heriot's Trust (1906) 8 F. 647, 658, "all the owners hold together in common, and they have, if I may so express it, a metaphysical right in every minutest atom of which the property is composed." It was held in that case that one pro indiviso proprietor could not create a servitude non aedificandi over the common subject. Thus the consent of all of them is required for the granting of a lease of the lands. In Campbell and Stewart v. Campbell 24 Jan. 1809 F.C. it was held that while one co-proprietor might be entitled to allow friends to shoot on the common lands the letting out of the shootings was not an ordinary use of the lands and was not effectual without the express consent of both proprietors. In Schaw v. Black (1889) 16 R. 336 it was recognised that the consent of all the co-proprietors was necessary for recovery of the rents. And the same principle was stated by Erskine to lie behind the necessity for all to co-operate in the removal of a tenant. He observed (Institute 2.6.53):

 "A proprietor, who has no more than a joint interest with another in a land estate pro indiviso, cannot by himself remove tenants from his part of the land without the concurrence of the joint proprietor, as long as the land is undivided; because every inch of the ground belongs to both proprietors pro indiviso in indeterminate proportions; and consequently, it is impossible for the tenant to remove from the share of the lands belonging to the pursuer, in the removing, without also removing from that which is vested in the other proprietor; to which the law cannot compel him, unless that other concur in the suit."

          Thus in Grozier v. Downie (1871) 9 M. 826 it was held that the absence of one of the three co-proprietors was a radical and fatal objection to the title of the others to sue a removing. Since the consent of all is required for the management of the subjects the rule in re communi melior est conditio prohibentis applies, whereby one co-proprietor may prevent any changes occurring in respect of them.

          In light of that basic characteristic of common property it does not seem to me that any or all of those who are co-proprietors can validly create a lease of the lands in favour of one of their own number. In the present case the appellant was by virtue of his co-ownership entitled to the use of the lands, albeit along with the other co-proprietors. He needed no grant of a right to use or occupy the lands. He already had that right. If the others chose to surrender their rights of use so as to leave him in exclusive possession that did not create in him a right of tenancy but simply removed a qualification on the rights which he enjoyed as a co-proprietor. He thereafter occupied the land not by virtue of a right granted to him by the proprietors but by virtue of the right which he had possessed all along as a co-proprietor. A right of sole occupation cannot co-exist with a right of ownership, albeit co-ownership, in the same person. The greater right must absorb and extinguish the lesser right. The narrow path which Lord Mackay of Clashfern identified in Pinkerton v. Pinkerton 1986 S.L.T. 672 whereby a lease could validly be constituted between a sole proprietor and several persons including himself as tenants is not available where the greater right is held in its entirety by the landlord. By virtue of that right he can grant the lesser right of occupation to others along with himself. But the co-proprietors in the present case can grant nothing to the appellant as sole tenant when he already has a right of occupation to the whole lands. Counsel for the appellant sought to overcome the general rule which requires all the co-proprietors to act together by developing an exception to it. Two points arise in this connection. Firstly, it is certainly correct that one co-proprietor may establish a title and interest to defend the common property against encroachment by a third party. It was so held in Lade etc. v. Largs Baking Co. (1863) 2 M. 17 where one of the co-proprietors was a shareholder in the company alleged to be encroaching. In so defending the common property one co-proprietor would no doubt be entitled to eject a third party encroaching upon it. But as Lord Cringletie observed in Ure v. Ramsay and Johnstone (1828) 6 S. 916, 919, there is "a great and manifest distinction between the right to do any thing, and the right to prevent." That one co-proprietor may have title and interest to prevent encroachment or to resist intrusion does not mean that he can act independently in the administration or control of the lands. Moreover while a co-proprietor may have title and interest to prevent injury to the common property even where the party allegedly committing the injury is one of his co-proprietors it does not follow that he can remove that person from the lands which they hold in common.

          Secondly, there is one exception to the rule that one co-proprietor may not make any significant change or extraordinary use of the lands. That exception arises in cases of necessity. Bell recognises the one exception in para 1075 of his Principles "that necessary operations in rebuilding, repairing, etc. are not to be stopped by the opposition of any of the joint owners." But it does not seem to me that the exception goes wider than cases of necessity. The somewhat delphic observation in para 1077, unilluminated by authority, that "Where parties cannot agree, either the will of the majority rules, or the ordinary state must be continued" does not advance the matter. Counsel for the appellant sought to develop the exception to support an argument that one co-proprietor might act for the common advantage of all and that it would be equitable to allow a remedy to one co-proprietor which could benefit the property even although it was opposed by the other. In Deans v. Woolfson 1922 S.C. 221 the rebuilding of an outside stair was treated as a necessary work of restoration. The Lord Justice-Clerk in that case observed that the exception which Professor Bell recognised was "a most proper and equitable consideration." But that comment does not seem to me to have been intended to introduce considerations of equity into the definition of the exception. While, as can be seen in A. v. B. 1680 M. 2448, considerations of the common advantage may entitle one adjudger to remove a tenant without the consent of the others, the rights and interests of adjudgers are, as Hunter points out in his Landlord and Tenant, 4th ed. vol. II p. 13, different from those of co-proprietors. I am not persuaded that the exception can be extended in the way for which counsel for the appellant contended.

          Returning then to the general rule of the necessity for all to consent it seems to me that the appellant's case can be tested by considering the remedies available in the event of a failure by the alleged tenant to comply with the arrangement. If he was a tenant under a lease and was in breach of the terms of the lease, for example by failing to pay the rent, the landlord would be entitled, subject to complying with any relevant statutory procedures, to remove him and recover possession for himself. The tenant would, in the time-honoured phrase, be obliged to leave the lands void and redd. But in the present case the would-be landlords can do no such thing. The appellant would presumably refuse to consent to his removal. The others would not be able to remove him from the lands altogether since he has a perfectly good right to possession as a co-proprietor. The remedy for the other co-proprietors would then have to be found in an action for division and sale.

          The point can be seen in some of the cases to which reference was made. In Murdoch v. Inglis 1679 3 Brown's Supplement 297 a removing was refused where the other co-proprietor was consenting to the tenant continuing to occupy. In Bruce v. Hunter and Leisk 16 Nov. 1808 F.C. where one co-proprietor objected to the use made of part of the lands by the other it was held that he had no title to sue for a removing and the right was reserved to either party to bring a process for ascertaining the extent and obtaining possession of their respective properties, presumably by an action for division. In Price v. Watson 1951 SC 359 a co-proprietor sought summarily to eject two persons who had purchased the other original pro indiviso share of the property from the original co-proprietor and had taken occupation of part of the whole subjects. The court held that the proceedings should be sisted in order to allow the bringing of an action for division and sale as the appropriate remedy in the circumstances. Lord President Cooper refrained from affirming that one co-proprietor could never eject another but the observations which prompted his hesitation do not seem to me to go so far as to raise serious doubt on that matter and I consider that the view taken by Lord Keith is to be preferred. Lord Keith, at p. 366 stated with reference to an ejection "That it can be used against a co-owner who has a right to possess, flowing from his property title, is, in my opinion, a plain impossibility."

          The case of Higgins v. Assessor for Lanarkshire 1911 S.C. 931 was founded upon as an example of a lease by pro indiviso proprietors to one of their number. In that case all that the Lands Valuation Appeal Court required to hold, as they did, was that the figure of £16 for which the two appellants were contending should be entered in the valuation roll as the rent was not the rent under a bona fide lease. They did not require to consider whether the arrangement which had been made was a lease by pro indiviso proprietors to one of their number. Certainly the facts were somewhat curious. The appellants were Higgins as owner and Steel as tenant. They were the owner and tenant respectively entered in the valuation roll. It evidently emerged before the valuation committee that the property was jointly owned by Higgins, Steel and a Mrs. Rennie, the widow of a former tenant. There was no formal lease and no formal written agreement. Lord Johnston observed:

 "That Steel could be ejected by his co-proprietors I have no doubt. Qua tenant, he could not avail himself of his right as co-proprietor pro indiviso to resist removal at the instance of his co-proprietors. Those co-proprietors own only 23/32nd parts pro indiviso of the subjects, while David Steel himself owns the other 9/32nd parts. That fact does not enable him to maintain himself in possession qua tenant till he is removed with his own consent. But it does place him in a position in which he could make it impossible to let the property to another tenant, and therefore could give much trouble to his co-proprietors."

          I do not regard this case as supporting the appellant in the present appeal. The removal to which Lord Johnston refers is a removal from occupation as "tenant." But, as he recognises, Steel retained a right of occupancy as co-proprietor.

          There must of course be reasonable limitations on the agreed use of the common property so that, as Lord M'Laren put it in Governor's of George Watson's Hospital v. Cormack (1883) 11 R. 320 at p. 323 "one proprietor may not obtain an excessive benefit at the expense of his co-proprietors." If the one does with the consent of the others take the whole fruits of the lands, then it is reasonable that he should make some payment to the others in that regard. But the payment which he would make to them would not be a rent but a compensation for their loss. The distinction is made by Lord Keith in Price, at p. 366:

 "A co-owner, it is true, has not an exclusive right of possession, unless by agreement with his co-owners, but he may possess in a variety of ways. He may allow a co-owner to have sole natural possession in return for a compensating money payment; he may share the natural possession of the whole subject with his co-owners, as in the case of sisters occupying a house in common; he may join with his co-owners in letting the subjects, dividing the rent in proportion to his interest in the property; he may occupy one part of the property, and his co-owner the other part; he may occupy one part, and his co-owner draw a rent from the other part."

          One essential of a lease is the payment of a rent, but what in substance was arranged to be paid in the present case, despite the language of the Minute of Lease, was not a rent but a compensatory payment.

          I am accordingly of the view that the appellant did not acquire a right of tenancy of the lands. His right to occupy was attributable not to any grant by his parents but to his own right as co-proprietor. His rights as co-proprietor were such as to defeat any attempt by the so-called landlords to remove him altogether from the lands. What was described as a rent was truly a compensation for the surrender of his parents' rights to share in the use of the lands. What was achieved by the consent of the three co-proprietors was that the appellant obtained as an act of management and administration the sole possession of the lands. But that did not secure for him a real right as tenant nor did it create a valid lease.

          Counsel for the respondents gave notice of his desire to raise a new argument to the effect that even if there had been a valid lease the result of the vesting of his whole estate in his trustee in the sequestration, the occupation of the lands by his trustee and the absence of any payment of rent since at least 1989 was that there was now no tenancy and any occupation he might now have was precarious. If this approach is sound it may be that the whole debate has been somewhat academic. As the point had not been raised in the pleadings and had not been advanced in any of the courts below leave to develop the argument at this stage was refused.

          I would refuse the appeal.