David Carnegy - Romill - Cler - Fullerton v. Miss Margaret Scott - Giffor - Moncreif - H. J. Robertson [1822] UKHL 1_Shaw_114
A lease having been granted for two 19 or 38 years, “and the lifetime of the person having right to this present tack at the expiry of the said two 19 years, either as heir or assignee,” provided such assignation be made within 29 years from the commencement of the lease, failing which, the lease to belong to the heir of the tenant; and the tenant having remained in possession for the whole period, and during his own lifetime—Held, (affirming the judgment of the Lord Ordinary, and reversing that of the Inner House,) that a party claiming right as his heir could not insist on possessing during her own life.The late Mr. Carnegy, the father of the appellant, exposed in 1769 two farms, Upper and Nether Dysart, to be let according to articles and conditions of roup. Patrick Scott, the father of the respondent, was preferred to that of Nether Dysart; and an instrument of lease was immediately executed, by which Mr. Carnegy let to Scott, “his heirs and assignees, (such assignees being always made in manner and within the space after expressed,) all and haill the town and lands of Mains of Meikle or Nether Dysart, &c., and that for the space of two 19 or 38 years and crops; and after the expiration of the said two 19 years, for all the years and crops of the lifetime of the person having right to this present tack, at the expiry of the said two 19 years, either as heir or as assignee appointed within the space after expressed, from and after their entry to the said lands, which is hereby declared to be and begin to the said dovecot at the term of Martinmas next; to the houses, yards, and grass at the term of Whitsunday 1770; and to the arable land at the separation of the crop 1770 from the ground;—reserving always to the said Thomas Carnegy an acre of land or thereby of the lands hereby set,” &c. “And farther, the said Thomas Carnegy hereby gives and grants full power to the said Patrick Scott and his foresaid, to assign this present tack at any time before the expiration of the first 29 years thereof; but if such assignees are not made, and the assignations duly intimated to the said Thomas Carnegy, or his heirs and successors, before that time, then this tack is to fall to the heirs of the person having right to the same at the end of the said 29 years; and all assignations made of this present tack after the lapse of the said 29 years, and although then made, if they are not duly intimated to the said Thomas Carnegy or his foresaid before that period, are hereby declared to be void and null.” Mr. Scott did not avail himself of the power to assign, but continued in the possession till the year 1814, beingPage: 115 ↓
Page: 116 ↓
Lord Chancellor .—This is a question as to the endurance of a lease. In the course of the cause, an interlocutor was pronounced by Lord Pitmilly, Ordinary, which appears to me to express the clear meaning of the lease. In my opinion, therefore, the interlocutor of the Court, altering that of the Lord Ordinary, cannot stand. The Court of Session make the respondent heir of her father. There is some difficulty, I think, in investing her with this character, and they give her a liferent after that of her father. I think there is no doubt that the intent was, that if her father outlived 38 years, the lease was to expire with his life. Therefore we must reverse the interlocutor complained of, and affirm that of the Lord Ordinary.Solicitors: Spottiswoode and Robertson,— A. Mundell,—Solicitors.( Ap. Ca. No. 7.)
Footnote
* Not reported.