Francis Grahame - Lord Advocate Murra - Dr. Lushington v. Stewart Jolly - Stoddart [1835] UKHL 2_SM_24

UKHL
Francis Grahame - Lord Advocate Murra - Dr. Lushington v. Stewart Jolly - Stoddart
[1835] UKHL 2_SM_24 · 1835-06-17
Circumstances in which, it having been found by the House of Lords, on a former appeal, that the tenant of a farm was entitled at the end of the lease to meliorations for houses and biggings, in so far as the original houses and biggings on the farm had been improved, or others suitable to the farm had been erected, but not for any other houses and biggings built of new—Held (affirming the judgment of the Court of Session), that the tenant was entitled to various specific sums for meliorations.

Subject_ Process. —

A party who has closed a new record is not entitled to refer to the old record as qualifying or contradicting the new.

Subject_ Appeal — Expenses. —

A respondent was found entitled to expenses in the Court of Session, and on appeal the case was remitted on the merits with special findings, and the interlocutors were, in so far as inconsistent with them, reversed—Held that the reversal did not apply to the expenses, and that the respondent was entitled to them.William Grahame , the father of the appellant, and heir of entail in the possession of the estate of Morphie, granted in the year 1762 a lease to William Gibson of the lands of Morphie-Meikle and of Pilmour (with the exception of a small appendage) for the period of fifty-seven years.It contained, inter alia, the following stipulations as to the houses and fences:—the said William Gibson and his foresaids to make parks and enclosures upon the said farm, and to plant hedges and trees along the dykes, ditches, or fences thereof, the said William Grahame hereby binds and obliges himself and his foresaids to furnish to the said William Gibson and his foresaids, gratis, whatever plants of hawthorn, any young trees they shall call for, from time to time, for planting hedges, for enclosing these parks or enclosures, and also for planting trees along these hedges, or other dykes, ditches, or fences enclosing the same; and also, at the issue or expiration of this tack to pay or allow to the said William Gibson and his foresaids the value of all those dykes, ditches, hedges, and other fences and trees to be so planted, according as the same shall be then valued and appraised by two neutral skilful men mutually to be chosen both by the heritor and tenant, seeing the heritor will then have the benefit of all those fences and trees. Furthermore, it is hereby provided and declared, that the whole houses and biggings on the said farm, except the dwelling house after mentioned, are to be estimated and appraised over to the said William Gibson, at his entry thereto, by two neutral men mutually to be chosen by both parties; and as the dwelling house presently possessed by the said Jean Smith is in a ruinous condition, therefore the said William Gibson hereby binds and obliges him and his foresaids, at his entry to the said land, to build a new dwelling house on the ground where it stands, not less than thirty-six feet in length and fifteen feet in breadth within the walls; and the said William Grahame binds and obliges him and his foresaids to furnish whatever timber shall be necessary thereto for making it a good and sufficient farm-house, with a loft therein, and also to pay to him 120 l . Scots for helping to defray the charges of the work, and that at the first term of Whitsunday or Martinmas after the said William Gibson shall finish the said dwelling house; and the said William Gibson binds and obliges him and his foresaids to transport the said timber from Montrose, or any place of the like distance, and to furnish all the other materials, workmanship, and charges for completing the said dwelling house, after which that house is also to be valued and appraised by two neutral men to be mutually chosen as aforesaid; and the said William Gibson and his foresaids are to uphold these houses and biggings during the whole space of this tack, and at the expiration thereof they are again to be valued and appraised by two neutral men to be mutually chosen by both parties; and if at the said last appreciation the appraised value of these houses and biggings, including the dwelling house so to be built, shall exceed the values thereof at the first appreciation, then the said William Grahame and his foresaids shall be bound to pay or allow the meliorations to the said William Gibson or his foresaids; and, on the contrary, if at the last appreciation the appraised values shall be less than at the first, the said William Gibson and his foresaids shall be bound to pay the deterioration or deficiency to the said William Grahame or his foresaids.”

“And in order to encourage

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Gibson entered into possession, and proceeded to erect his dwelling house, but no valuation took place. On the death of William Grahame he was succeeded by his son, Robert Grahame.

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In 1785 Robert granted a second lease to Gibson of the appendage which had been excepted from the former lease. This second lease was to endure for all the years of the former, and it contained a clause as to the valuing of the houses in the same terms with the provisions of the former lease. The houses on this appendage were valued at 15 l . Robert died in 1793, and was succeeded by his only son, Robert William, who died in apparency, in 1794, without issue, and was succeeded by his brother the appellant, who made up titles as heir of tailzie to the estate of Morphie and also of Balindurg, the entail of which latter estate had not been recorded at the dates of the leases. These leases were homologated by the appellant, and in November 1799 Gibson assigned them to the respondent, Mr. Jolly, who entered into possession.On the leases being about to expire, a dispute arose between the appellant and respondent as to the liability of the appellant to implement the obligation as to melio rations, and if so to what extent. The respondent refused to pay his rent unless credit was given for the meliorations; and the appellant therefore presented a petition to the sheriff of Kincardineshire for warrant to sequestrate and sell, while the respondent applied also by petition to have the value of the meliorations ascertained and decerned for. Both cases eventually came into the Court of Session by advocation, and the Second Division, on the 25th February 1824, pronounced this interlocutor:—Gibson, and assigned to the said Stewart Jolly: Find, separatim, that the said Francis Grahame, in respect of his having succeeded to the estate of Balindurg, and that the entail thereof was not recorded till after the dates of the said tacks, is liable to implement the said obligations, suo ordine; and in order to ascertain the quantum of meliorations for which the said Francis Grahame is liable, remit to the Lord Ordinary to hear counsel for the parties thereon, and to do therein as his Lordship shall see cause.”
“The Lords having advised the mutual informations for the parties, they, in respect of his own approbatory acts, find the said Francis Grahame liable to the said Stewart Jolly in implement of the whole clauses and conditions in the two leases originally granted by the deceased William and Robert Grahame to William

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The Lord Ordinary then ordered a record to be prepared, which was done; and the case was afterwards reported to the Court, who pronounced this interlocutor:—
“The Lords having advised the mutual cases for the parties, and heard counsel thereon; find that the advocator, Stewart Jolly, is entitled to meliorations for houses and biggings, whether repaired or built of new, in so far as the same are necessary and suitable for the farm; and remit to the Lord Ordinary to proceed accordingly, reserving entire all questions of expenses.”
In the meantime Grahame presented another petition for sequestration, which was also advocated and conjoined with the other actions; the Lord Ordinary (14 June 1828) pronounced a special interlocutor, by which he, inter alia, “finds said Francis Grahame liable for the expenses of resisting the sequestrations in the inferior Court, and advocating these two processes to this Court, but to no other expenses after these advocations were brought into this Court except as above specified.”Both parties reclaimed, and the respondent raised a supplementary action against the appellant, in which he concluded for interest.

The Court pronounced this interlocutor:—

to the interlocutor of the Lord Ordinary, and refuse the desire of both reclaiming notes; and, farther, find the said Stewart Jolly entitled to legal interest on the balance found due to him for meliorations from the date of the expiry of the lease in 1820, when the same became due, and till payment, and decern.”

“Adhere

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The expenses were afterwards taxed and decerned for to the amount of 205 l . 3 s . 9 d . sterling, besides the expense of extract.Grahame appealed, and the House of Lords, on the 29th of January 1831, pronounced this judgment:—
“The Lords spiritual and temporal, in Parliament assembled, find that the advocator, Stewart Jolly, is entitled to meliorations for houses and biggings, in so far as the houses and biggings on the farm at the dates of the tacks are improved, or others suitable to the farm built in lieu of the same, and better than the same, at the expiration of the tack; and find that he is not entitled to meliorations for houses and biggings built of new, except as aforesaid: And it is ordered and adjudged, that the several interlocutors complained of in the said appeal, so far as the same are inconsistent with the above findings, be and the same are hereby reversed: And it is further ordered, that the cause be remitted back to the Court of Session, to do therein as shall be consistent with the said findings, and as shall be just.” 1
The cause now returned to the Court of Session, and the Lord Ordinary ordered a new record to be made up on the points remaining for discussion, which was done.

Footnote

1 5 W. & S., p. 280.

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The Lord Ordinary pronounced this interlocutor, which sufficiently shows the special matters in dispute between the parties:—said sums cannot be taken as the estimated value of the house erected by the tenant in terms of his obligation; and finds a deficiency of any precise evidence to supply the place of the valuation which the parties neglected to have taken; but finds, considering the small value of the wood supplied,—which formed the whole wood used in the house,—and the small sum furnished by the landlord, as his share of money for the building thereof, it must be presumed that the said house was originally not of large value, and that the sum of 150 l . may safely be taken, in absence of precise evidence, as a valuation, which the said house certainly did not exceed: Finds the value of the said dwelling house, with its meliorations, at the end of the lease, proved to have been 254 l . 3 s . 7 ½ d .; and finds it proved that these meliorations were not unsuitable to the farm; and finds the pursuer entitled to the difference, being 104 l . 3 s . 7 ½ d . 2do, Finds it proven that the true value of all the houses or biggings on the farm of Morphie, except the principal dwelling house on that farm above mentioned, at the entry of William Gibson, the original tenant under the lease libelled, must be held to have been 51 l . 6 s . 9 d ., which sum in toto is to be set against the total sum of the value of the houses and biggings for which the pursuer is entitled to claim, as being left on the said farm at the expiry of the said lease, i. e. being either the old houses and biggings, or being meliorations of or in lieu of the same; and in relation to the said houses and biggings last mentioned finds as follows:—viz., 3tio, In respect to a stable and bothy for which a claim is next made, finds it admitted by the defender that they were built by the pursuer near the site of one of the old houses of the farm, the foundations of which were cleared away before the stable was built; and finds it expressly averred by the pursuer, and not sufficiently denied by the defender on record, that the old house was of the same nature as the stable and bothy erected in lieu thereof, and finds it not proved that the said stable and bothy were unsuitable for the farm; therefore finds the pursuer entitled to claim for the value of the same, as at the termination of the lease, which finds to have been 156 l . 3 s . 4to, In respect to a granary and poultry-house for which a claim is next made, finds it not proven that the granary was a melioration of or in lieu of any of the old houses or biggings on the farm, and that therefore the pursuer is not entitled to claim for its value; but sustains his claim for the poultry-house, as coming in lieu of an old poultry-house, and not appearing to be unsuitable to the farm, and finds the amount thereof to be 11 l . 9 s . 5to, In respect to a cattle-shed and pigstye for which a claim is next made, finds it not proved that the same were on the farm, or were meliorations of or in lieu of any old buildings on the farm, and therefore repels the pursuer's claim. 6to, In respect to two barns for which a claim is next made, finds it sufficiently proved that these were built in lieu of other old buildings of the same kind on the farm, and not proved that they were unsuitable for the farm, and therefore sustains the claim for the value of them at the expiry of the lease, which finds to be 247 l . 12 s . 9 d . 7mo, In respect to the byres, oxen-byres, and cattle-shed, for which a claim is next made, finds that the erection of the byres, in lieu of old byres existing on the farm, is averred and not denied on the record, and therefore sustains the pursuer's claim on account of the value of them, and finds that it amounted, at the termination of the lease, to 63 l . 17 s . 5 d . In respect to the oxen-byres and cattle-shed, finds it not admitted or proved that they were meliorations of or erections in lieu of old buildings of the kind existing on the farm, and therefore repels the pursuer's claim in respect to them. 8vo, In respect to the servants' houses, with byres, on account of which a claim is next made, finds it not denied that one of these houses was on the farm at the commencement of the lease, and is still used as a servants' house; finds no precise evidence of its separate value at the termination of the lease; but finds it must have formed a considerable part of the total value of 55 l . 18 s . 6 d ., at which this article is estimated; finds, therefore, that its value may be taken, as claimed by the pursuer, at 15 l . 4 s . 9no, In respect to the next article on account of which a claim is made, viz. servants' houses and byres west from the steading walls, finds that it is in substance admitted by the defender that these are or were erected in lieu of old houses or biggings that were upon the farm; and finds the value, at the termination of the lease, proved to have been 31 l . 8 s . 1 d . 10mo, In respect to the garden walls, on account of which a claim is made, finds it not proved that the same were erected in melioration or in lieu of any garden wall existing on the farm at the date of the lease, or that the same are useful to the farm as ordinary fences, and therefore repels this article of claim. 11mo, In respect to twelve cot-houses, for which a claim is made, finds it admitted that there were eleven of them on the farm at the date of the lease, and finds that the value may be taken to be proved, as the pursuer now states it, viz. 89 l . 6 s . 9 d . 12mo, Finds the pursuer entitled to legal interest from the 31st day of December 1820 to the 14th day of July 1830, on the meliorations due to him, but this under deduction of any sums due to the defender for rent or otherwise. 13mo, Finds the pursuer entitled to the sum of 205 l . 3 s . 9 d . of expenses of process, as now claimed by him; and, with these findings, appoints the cause to be enrolled, in order to decerniture or other procedure.”
“13th May 1834.—The Lord Ordinary having considered the remit from the Second Division, &c., 1mo, in relation to the principal dwelling house on the farm of Morphie libelled, finds that the tenant, under the lease which was assigned to the pursuer, was bound to erect a dwelling house on that farm of dimensions not less than certain dimensions specified, and that at his own expense, with certain furnishings of wood and money by the landlord, in order to assist him in said erection, but without any claim at the end of the lease on account of that erection; but finds that the tenant was by the said lease entitled to claim against the landlord at the end of the lease for any meliorations made on the said house after the erection and valuation of the same, not being unsuitable to the farm: Finds that it was agreed that there should be a valuation of the same after it was erected, but that this valuation does not appear ever to have been made: Finds that the value of the wood furnished by the landlord towards the erection of the said house appears to have been 27 l ., and the money to have been 10 l .; but that the

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“Note.—The Lord Ordinary certainly holds the defender bound by the closed record in the usual way. That may not, however, bar reference to the former papers as evidence under the closed record; but it precludes reference to any paper as contradicting or qualifying the new record.”
His Lordship afterwards (24th May) decerned “in terms of the findings contained in the interlocutor of 13th May current for the sums thereby found due to the pursuer, Mr. Jolly;” and found him entitled to expenses, modified to the sum of 70 l .Against these interlocutors both parties reclaimed to the Court, in so far as they respectively considered them unfavourable, and on advising the reclaiming notes the following interlocutor was pronounced (24th June 1834):—allowed by the interlocutor of the Lord Ordinary as the value of the oxen-byres and cattle-shed on said farm: Find, that from the sum of 89 l . 6 s . 9 d . allowed by the Lord Ordinary as the value of the cot-houses on the farm there falls to be deducted one twelfth part, or 7 l . 8 s . 10 3 ⁄ 4 d ., in respect there were originally only eleven cot-houses on the farm: Find, that in addition to the sum of expenses found due to the pursuer, he is further entitled to the dues of extract, being 4 l . 4 s . 1 ½ d ., being in all 209 l . 7 s . 10 ½ d .: Find the pursuer entitled to interest on the several sums found due to him, at the rate allowed by the bank, from and after the date of consignation, and decern; varying and altering, in so far, the interlocutor of the Lord Ordinary. Quoad ultra, adhere to the interlocutors of the Lord Ordinary reclaimed against, and refuse the desire of the notes, and remit to Lord Moncrieff to proceed accordingly.” 1
“The Lords having considered the reclaiming notes for both parties, with the other proceedings, and heard counsel thereon, find, that in addition to the sums allowed for meliorations by the Lord Ordinary's interlocutor, the pursuer is entitled to the sum of 80 l . 0 s . 3 d . as the value of dykes and ditches on the farm of Morphie, also to the further sum of 56 l . 3 s . 5 d ., in addition to the sum of 63 l . 17 s . 5 d .

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The case having been exhausted by an interlocutor by Lord Moncrieff, Grahame again appealed, maintaining, 1. That the interlocutors were erroneous; but as this entered into a minute and special detail, it is unnecessary to report it; 2. That they were erroneous in holding him bound by the new record; and, 3d, That the former judgment of the House having reversed the interlocutors, it was incompetent to decern against him for the former expenses.The respondent met this latter point by maintaining that there was not an absolute reversal, but only so far as inconsistent with the findings; that the expenses had been awarded as to the question of the appellant's liability

Footnote

1 12 S., D., & B., p. 789.

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Lord Brougham .—My Lords, when this case first came before me this morning, not having the least recollection of the circumstances that were detailed previously, and not having read the papers till this morning, I had very great doubts whether the Court of Session had not made an extravagant allowance to the defender, either under the remit of your Lordships, or at the date of the transaction in 1762, in respect of a very large proportion of those rents reserved; but with respect to the lease granted seventy-two years ago, the rent must have increased four or five, or perhaps seven or eight times. This was the first impression that existed on my mind, on finding that it was the old rent that was fixed upon, and that the new rent was a great deal more. I should think the parties would be able to tell, as far as fifteen years ago, what Grahame let the land for in 1820.Mr. Stoddart .—My Lord, I understand it is about 800 l . a year.Lord Brougham .—Probably it has come down now; but, however, we are to look to the value, not as now, but as it was at the end of the term in 1820. That being effaced from my recollection altogether, the sole question resolves itself into the various forms in which the allowance has been made by the Lord Ordinary in his interlocutor, and as far as additions have been added by the Court. First of all, the question is as to the dwelling house; but I shall not enter into that farther than to observe, that if I am to look to the contract by which

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Mr. Stoddart .—One of the houses was a smith's house, and of course of greater value than the others.Lord Brougham .—Was that the one that was builtanew?

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Mr. Stoddart .—Yes, my lord, it was, and we do not claim for it.Lord Brougham .—Then I may state, that the only question is, as to whether the Court of Session have done right in adopting one view of the terms of the contract, when it makes deductions for the outhouses, and another view of the terms of the contract when it makes a deduction for the dwelling house. My opinion is, that the two principles of the finding of the Lord Ordinary and the finding of the Court are not easily reconcileable, upon the grounds I have stated; but when I come to consider that the error, if any, is rather in deducting too much for the dwelling house than too little for the outhouses, it is clear that I cannot recommend to your lordships any proposition as to rectifying or amending the interlocutor in that respect; if it had been the other way, and if they had turned the scale against the appellant, instead of against the respondent, as to the meliorations in adopting the contract, it would have been necessary, before affirming the interlocutor, for the respondent to give in an answer to that objection. Whether he has an answer or not, it is not now for me to conjecture; but the question is, whether the Court have allowed the respondent too much, or the appellant too little? It is unnecessary to waste more time upon those points. As to the other points, they are merely relative to the expenses below, and the costs of the present appeal. The costs below are of necessity to be allowed, because they have been allowed in the former case; and the remit having been made upon reversing certain interlocutors, and directing the Court to proceed upon the ground of their former interlocutors (except as far as reversed), the

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The House of Lords ordered and adjudged, That the said petition and appeal be and is hereby dismissed this House, and that the interlocutors therein complained of be and the same are hereby affirmed: And it is further ordered, That the appellant do pay or cause to be paid to the said respondents the costs incurred in respect of the said appeal, the amount thereof to be certified by the clerk assistant.Solicitors: Williams, Brookes, Powell, and Broderip — Andrew Macrae, — Solicitors.