W. Taylor - Brougha - Shaw v. Sir W. C. Fairlie, and G. Taylor - Kea - Abercromby [1826] UKHL 2_WS_101
A lease having been granted to three tenants, excluding assignees, and two of the tenants having, without consent of the landlord, assigned their interests to the other tenant, who obtained possession, and was thereafter deprived of it: Held (affirming the judgment of the Court of Session), that he was not entitled to maintain an action against the landlord demanding re-possession, as being the only person entitled to possession.Subject_ 2. Appeal.—
Respondents, in an appeal, having failed to lodge answers to the petition of appeal, and also their Cases, in due time; and the cause being appointed for hearing ex parte, not entitled to be heard at the bar; but the case delayed on their paying the costs of the day.In 1812, Sir W. Cunningham Fairlie, proprietor of the estate of Fairlie, let to “John Taylor, Esq. of Blackhouse, William Taylor, Esq. Member of Parliament, and George Taylor, Esq. residing at Ayr, and their heirs ; but secluding assignees and subtenants, under whatever denomination, legal or voluntary, without the concurrence of the proprietor in writing,” the coal in the lands of Fairlie, “for the whole time and space of twenty-four years, and during the lifetime of the said George Taylor, should he survive the said period of twenty-four years, and commencing from and after the term of Martinmas next 1812.” By another lease granted in the same year, Sir William let to the same parties the farm of Peatland for the same period, and under the same conditions. In 1814, an arrangement was entered into between the three tenants, who were brothers, by which, after narrating the terms of a submission which was then in dependance, and that they had “agreed to sell and make over to the said William Taylor, and his heirs and assignees, our interest in the tacks before-mentioned, and as more particularly herein after assigned; and seeing the said William Taylor has granted bills to us, for the value of the stock and machinery after-mentioned, in terms of the foresaid agreement, therefore, in part implement of the said agreement, we have made and constituted, as we do hereby make and constitute, the said William Taylor, his heirs, and donators, our lawful cessioners and assignees, in and to our two third parts or shares in the two tacks in part before narrated, during the whole years and terms thereof, to run from and after the term of Martinmas 1813, as to the said farm of Peatland, and the first day of June 1814, as to the coal; and to all the clauses and obligements contained in the foresaid two tacks, profits, andPage: 102 ↓
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Lord President .—We cannot compel the landlord to take any one as an assignee. The advocator claims possession from him in that character. It is impossible to grant his prayer.Lord Balgray .—There is some difficulty from the advocator being a joint tenant, and holding an assignation from the other tenants. I rather think, however, that he cannot found on it as a title of possession against the landlord. The case may be different as to the other tenants; but I apprehend, that all the advocator can claim from them is damages for non-implement of the assignation.Lord Craigie .—From my acquaintance with some of the actions between these parties, I know that the landlord never recognised this person as an assignee.Lord Gillies .—There are peculiar circumstances attending this case, which present some difficulties; but I rather think the interlocutor right.William Taylor appealed.Appellant .—As the trustee on the appellant's sequestrated estate has abandoned all claim to the leases, and as the appellant has found caution for the expenses of process, he is entitled to prosecute this action, notwithstanding that his estates are under sequestration. † By virtue of the leases, he has, in a question with the landlord, a right to exclude him from possession; and by virtue of the assignation granted by the co-tenants, he has a similar right as to them, and is entitled at all events to draw the profits and emoluments corresponding to their shares. He obtained possession under each of these titles respectively, and he remains undivested,—the conveyance to the trustees being merely to them as managers, and the nature of the leases preventing theFootnote
* See 4 Shaw and Dunlop, No. 299.† † The case was appointed to be heard ex parte, as the respondents had not lodged their answers to the petition of appeal, nor put in their Cases in terms of the standing order of the 12th July 1811. Appearance was, however, made by the respondents at the bar, when the appellant objected, that they had no right to be heard. The respondents having, however, stated that they had presented a petition to the committee on appeals, to be allowed to give in their Cases, Lord Gifford moved, and the House ordered, that the hearing be adjourned, but that the respondents should pay the costs of the day.Page: 105 ↓
Lord Gifford .—But look at the nature of your petition to the Sheriff, in which you found upon the assignation, notwithstanding the exclusion of assignees in the leases; and you there pray to have it found, that you are the “only person entitled to the possession of the same.”Appellant .—In the petition, the leases granted by the landlord are also founded upon, and the assignation merely relates to the question with the co-tenants. By virtue of these leases, the appellant has, in reference to the landlord, an exclusive right of possession, and as the landlord insists for payment of the whole rents from the appellant, he is entitled to the entire possession. No objection was taken in the Court below to the form of the prayer, and the judgments are placed on different grounds.Respondents .—It may be admitted that the appellant has a title to pursue this action, as he has found caution for expenses, and the trustee does not claim. But the landlord was not subject to the jurisdiction of the Sheriff, and therefore cannot be affected by any judgment pronounced by him. Besides, the title which he granted to the appellant and his brothers was qualified with the express condition that assignees should be excluded;Page: 106 ↓
The House of Lords ordered and adjudged that the interlocutors be affirmed, with £50 costs.Solicitors: Duthie — J. Campbell, Solicitors.