David Carnegy, Esq. - Wetherel - Wilson v. Miss Margaret Scott - T. H. Mille - Robertson [1830] UKHL 4_WS_431

UKHL
David Carnegy, Esq. - Wetherel - Wilson v. Miss Margaret Scott - T. H. Mille - Robertson
[1830] UKHL 4_WS_431
Held (affirming the judgment of the Court of Session) that an heir who continued in possession of a farm after the death of the tenant, on a supposed right vested in the heir by the terms of the lease, was not liable in violent profits prior to the judgment of the House of Lords, (reversing that of the Court of Session,) finding that the heir had no right.The late Thomas Carnegy of Craigo, the father of the appellant, offered, in October 1769, to let by public roup the separate farms of Upper and Nether Dysart, stipulating that the highest offerers “shall be obliged, within the space of three months after the roup, to enter into and subscribe formal tacks, written upon stamped paper, whereby the said Thomas Carnegy, on the one part, shall set, and in tack and assedation let, to the highest offerers respectively, and their heirs, the foresaid farms purchased by them at the said roup, for the space of two nineteen or thirty-eight years and crops; and after the expiration of the said two nineteen years, for all the years and crops of the lifetime of the person having right to the principal tack, either as heir or as assignee appointed within the space after expressed, at the expiry of the said two nineteen years from and after their entry to the said lands, which is hereby declared to be and begin 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; by which tack the said Thomas Carnegy shall give power to the tacksmen, or their heirs respectively, of assigning their said respective principal tacks at any time before the expiration of the first twenty-nine years of the said tacks; but if such assignations are not made, and the assignations duly intimated to the said Thomas Carnegy, his heirs and successors, before that time, then the said tacks are to fall to the heirs of the person having right to the said principal tacks, at the end of the said twenty-nine years, and all assignations made of the said tacks after the lapse of the said twenty-nine years, and although thus made, if they are not duly intimated to the said Thomas Carnegy or his foresaids, before the end of the said twenty-nine years, are hereby, and shall, by the said tacks, be declared to be void and null.”

The late Patrick Scott, father of the respondent, was the highest

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“And further, 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 twenty-nine years thereof; but if such assignees are not made, and the assignation 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 twenty-nine years; and all assignations made of this present tack after the lapse of the said twenty-nine years, and although then made, if they are not duly intimated to the said Thomas Carnegy or his foresaids before that period, are hereby declared to be void and null.”
In virtue of this lease Mr Scott entered into possession, and resided upon the lands with his family. It was stated on the part of the respondent, that when the time arrived for determining whether he should grant an assignation, so as to put the alternative liferent upon the life of an assignee, he was seventy years of age, and consulted counsel, as to whether, under the terms of the lease, the liferent would devolve upon his heir, and that being advised that it would, he did not execute any assignation in favour of the respondent, who (she alleged) was his heir, which otherwise he would have done.Mr Scott survived the fixed period of thirty-eight years, and did not die till 1814, being about six years after the expiration of that period, and leaving two daughters. The appellant, (who had succeeded to his father,) presented on the 14th of April of that year a petition to the Sheriff of Forfarshire against the respondent and her sister, and also against sub-tenants, praying “to find that the foresaid tack or lease terminated and expired at the death of the said Patrick Scott, and therefore to decern and ordain the said several persons immediately to remove from the lands of Dysart, and whole pertinents thereof, to the effect the petitioner, as having right in manner

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“In respect the late Patrick Scott did not assign the lease of the farm in question in terms of the tack, finds that the right of the said Patrick Scott to continue tenant after the first twenty-nine years of the lease, is not to be held forfeited or taken away by inference from ambiguous clauses in the lease, without an express declaration to that effect; finds that Patrick Scott remained tenant after the first twenty-nine years of the lease, and was, at the expiry of the second nineteen years specified in the lease, the only person having right to the tack; finds, therefore, that the tack terminated at his death; finds that the defender (respondent) will be entitled to reap the crop of any fields that were sown at the time of Mr Scott's death, on paying a proportion of the whole rents effeiring thereto; finds that the pursuer must pay a bona fide price for the labouring or sowing of any ground which has been laboured or sown since Mr Scott's death; and, with these explanations, decerns in the removing, and ordains all the defenders to remove within twelve days from this date; but finds no expenses due.”
He also issued the subjoined note of his opinion. * The respondent then presented a bill of advocation, but it was refused by Lord Glenlee. Against this judgment she reclaimed to the Second Division, who altered, and remitted with instructions to pass the bill. On this occasion the question of right was fully discussed, and the late Lord Meadowbank, who was in favour of the respondent, delivered the subjoined opinion. †

Footnote

* “I am decidedly of opinion, that if, at the expiry of the first twenty-nine years of the lease, any competition had occurred between the late Mr Scott and the defenders, Mr Scott would have been found the only person having right to the tack. The lease was granted to him, and his right is not to be taken away by any inference from doubtful clauses framed on the supposition that Mr Scott was likely to die before the expiry of the first twenty-nine years of the lease; and which clauses were therefore worded so as (in case of any assignation being granted by Mr Scott, or of his death) to secure the right of the heir or assignee.”† “I am not entitled to conjecture a construction, when I have words that carry a clear grammatical construction and a logical one. Now, what is this case?

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The case having then come before Lord Pitmilly in the Outer House, he pronounced, on the 11th July 1815, this interlocutor:—
“The Lord Ordinary having heard parties' procurators, and thereafter considered the process, finds that the clause in the lease, on which the advocator's (respondent's) claim is founded, is not applicable to the case which happened, of the original tenant not having assigned the lease within the stipulated term of twenty-nine years from its commencement; but having survived the period of thirty-eight years from the date of the lease, and having himself remained in possession of the farm during his lifetime, finds that the clause of the lease referred to by the advocator provides for the continuance of the lease, after the fixed period of thirty-eight years, during the lifetime either of an assignee who might have acquired right to the lease before the expiration of the first twenty-nine years, and, in virtue of his assignation, might have been in possession at the end of the thirty-eight years, or during the lifetime of the person who may have been the heir of the tenant at the end of the twenty-nine years, and afterwards might have succeeded to the lease, and been himself in possession at the expiration of the thirty-eight years; finds that the right of liferent adjected to the fixed period of thirty-eight years, was intended to be given to the person in possession when the liferent was to commence, and was accordingly, in one of the cases mentioned in the tack, conferred on an assignee to the lease; and finds that there is no room for holding, either that the heir of the original tenant could dispossess the tenant in possession, or that the duration of the right of the tenant in possession, after the fixed period, was to depend on the length of the life of the person who may have been presumptively his heir at the end of twenty-nine years from the commencement of the lease; repels the reasons of advocation, and remits the cause simpliciter to the Sheriff.”
To this judgment, on considering two representations with answers, he adhered on the 16th January and 23d

Footnote

The tack is to P. Scott, his heirs and assignees. These are the grantees—the period of endurance is a different matter—it might refer to any man, or to the king. I say, there is here a nominee of the liferent—it is either the assignee duly constituted, or the heir who becomes indefeasible. Look at the words: for the space of two nineteen years, and for all years and crops of the lifetime either of heir or assignee; that is, a nominee of the liferent. If Mr Scott had survived the heir, the liferent of the nominee would be gone, and he must have removed at the end of the thirty-eight years. Are we to take a probable, but conjectural meaning, against a meaning not so probable, but which is strictly deducible from the words employed, and capable, in all respects, of being logically applied, to regulate the rights of parties in the circumstances of the transaction?”

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In the meanwhile, the respondent continued in possession, subset the greater part of the lands in 1818 at a large surplus rent, and built a mansion-house.The case having returned to the Court of Session, their lordships “adhered to the interlocutors of the Lord Ordinary mentioned in said judgment,” and remitted to his Lordship to proceed farther in the cause. The appellant having claimed violent profits from the date of the commencement of the action in the Sheriff Court, Lord Pitmilly found him entitled to them, and ordained him to give in a condescendence of the amount; but on a representation by the respondent, his Lordship recalled this interlocutor, ordered a condescendence by the appellant of the facts on which he rested his demand, and afterwards reported the question on informations to the Court. On advising them, their Lordships, on the 4th of December 1827, found, “that the pursuer (appellant) is not entitled to violent profits from any earlier date than the 6th of March, 1822, when the judgment of the House of Lords was pronounced, but found no expenses due.” ‡Mr Carnegy appealed.Appellant .—1. The ground on which the plea of bona fides by the respondent rests, is excluded by the special terms of the judgment of this House. By that judgment, the interlocutors

Footnote

* It was stated by the respondents that Lord Robertson, who had formerly given an opinion adverse to the judgment, now concurred in it.† See 1 Shaw's App. Ca p. 114.‡ See 6 Shaw and Dunlop, 206.

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2. Independent of this, the judgment of the Court of Session is erroneous, and was pronounced in consequence of not adverting to a material distinction between this case and the others which have been decided in regard to bona fides. In the former cases, (such as those relative to the Queensberry leases and the sales of the Sheuchan estate,) the parties had titles which, ex facie, were unexceptionable, and were set aside only in respect of extrinsic objections. These rights formed, therefore, good titles of possession, till a judgment of a court of law was pronounced, finding them bad. But, in the present case, the respondent had no title at all. She no doubt contrived, by force of ingenuity, to rear up a construction which induced a majority of the Court to pronounce a judgment in her favour. But both the Sheriff Depute, the Lord Ordinary, the minority of the Court, and this House, were clearly of opinion that the respondent had no title at all. If the appellant had challenged it on the ground of defect of power in his father, or on some similar extrinsic objection, the authorities relied on might have applied. But his plea was, that she had no title, and that plea was sustained by this House. Neither can the judgment complained of be reconciled with the principle on which the plea of bona fides rests. That principle is not merely that the party has consumed fruits which he bona fide believed to belong to himself, but that the true proprietor has culpably neglected to vindicate his right, and so put the party on his guard. Now the appellant does not claim the rents earlier than the date of his petition to the Sheriff, which was an intimation to the respondent sufficient to certify her that the appellant meant to enforce his claim. Nor does he claim more than the actual surplus rents drawn by the respondent during her illegal possession. Besides, she was not the true heir. If she had any title at all, it was only as heir portioner; and as the other heir portioner did not oppose decree of removing, the respondent is not entitled to plead bona fide possession as heir, nor to withhold payment of the full rents drawn by her.Lord Chancellor . (To the appellant's counsel.) On one point you need not give yourself any trouble. By making the word heir a word of

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Before you close your argument, can you show me any instance of a decided case, where it was held to be a mala fide possession after the reversal of the judgment?Wilson, for Appellant .—No, my Lord, I cannot.Lord Chancellor .—My Lords, I shall not require the learned counsel for the respondent to discharge their duty to their client, but I will shortly state to your Lordships the reasons for my judgment. Generally speaking, when I advise your Lordships to affirm a decision on appeal, I do not trouble your Lordships with the reasons which may be given; but there is a peculiarity in this case which leads me to state why I do not call on the learned counsel for the respondent to address your Lordships. It is not from mere deference to the authority of the Court below, though that is always entitled to the greatest respect; nor is it from any wish hastily to dispose of this matter, that I stop the counsel, and propose that you should decide the point at the present stage. But my reason is this,—we are here on a question of Scotch law, as to which

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Footnote

* Lord Alloway.† Lord Eldon. See 1 Shaw, Ap. Ca. 114.

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The House of Lords accordingly ordered and adjudged that the interlocutors complained of be affirmed.Appellant's Authorities .—2 Stair, 1. 23. 2 Ersk. 1.25. Respondent's Authorities .—1 Stair, 7. 12. 1 Bankton, 8. 18. 4 Ersk. 2. 25. 2 Stair, 9. 44, 45. 2 Bank. 9. 75. 2 Ersk. 6. 54. Pitmeddin, July 7, 1627, (306.) Macbraire, 20th February, 1666, (13,861.) Hamilton, 10th February, 1715, (13,803.) Hamilton, 16th February, 1669, (13,827.) Roxburgh, 17th February, 1815, (See 2 Shaw, App. Ca. 18.) Queensberry Cases, 10th March, 1824, (2 Shaw, App. Ca. 43.) Agnew, 22 July, 1828, (ante, III. 286.) Leslie, 13th Feb. 1745, (1723.) Haldane, Dec. 11, 1804, (No. 3. App. B. and M. Fides.) Bowman, 11th June, 1805, (No. 4. Ib.) Elliot, 22d May, 1822, (1 Shaw, App. Ca. 16.) Grant, 9th Feb. 1765, (1760.) Laurie, 21st June, 1769, (1764.) Turner, 3d March, 1820, (F. C.) Moir, 16th June, 1826, (4 S. and D. 725.) Gordon v. Innes , 19th June, 1828, (6 S. and D. 996, affirmed 10th Nov. 1830, (ante, 305.) Bonny, 13th July, 1760, (1728.) Brisbane's Trustees, 26th Nov. 1828, (7 S. and D. 65.)Solicitors: Spottiswoode and Robertson— Richardson and Connell—Solicitors.