Scottish Court of Session Decisions

Subject_1 PERSONAL and TRANSMISSIBLE.
Subject_2 SECT. V.

Personal Faculties and Privileges, whether they may be founded on directly by Creditors.

Major William Maxwell Morison
v.
David Patullo, and Captain David Laird

Date: 3 February 1787
Case No. No 104.

A tenant lease allowed retention of rent on account of a building to be erected on the lands. Not found entitled to it out of rent due to his landlord, the building not taking place till after the lands were acquired by a purchaser.

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By a lease of lands granted by Major Maxwell-Morison to Patullo, the latter became bound to erect on the lands a house of certain prescribed dimensions; for which it was stipulated, on the other hand, that he should have an allowance out of the rent of L. 50; a sum inadequate, however, to the value of the building.

Major Maxwell Morison sold the lands to Captain Laird, whose entry to them was to be at Martinmas 1783, and the rent due by the tenant for crop 1783 was not payable before Whitsunday 1784; between which two periods, the building of the house was begun completed.

Major Maxwell-Morison having brought an action against Patullo, for payment of that year's rent, the latter pleaded retention under the stipulation above mentioned. In this action, Captain Laird was afterwards called as a defender.

Pleaded for the pursuer, The building in question, posterior to the purchaser's right, served no other purpose but to benefit the lands; and of course the counter obligation must fall on the present proprietor, and not on the former, after his connection with them has ceased. It is clearly such an obligation as affects singular successors; and indeed the bargain was highly advantageous for the landlord. The circumstance of the defender's having in his hands a rent belonging to the pursuer is plainly immaterial; so that there is no ground for the plea of retention. Accordingly such was the decision of the Court, in the case of Arbuthnot contra Sir James Colquhoun, (supra.)

Answered, It is not sufficient that the purchaser was to reap the benefit of the building; this might equally have been said, though it had been prior to his right. The obligation respecting the allowance of deduction from the tenant's rent was personal to the former proprietor, and does not devolve on the present. In conformity to this plea, the Court decided the case of Macdowal contra Macdowal, 17th December 1760, voce Tack.

The Lord Ordinary found, “That the defender, David Patullo, had a right to retain the foresaid sum of L. 50 from the rents of the premisses contained in his lease, for building the house in question.” But

The Court altered that interlocutor, and repelled the plea of retention.

Lord Ordinary, Swinton. Act. Abercromby. Alt. Wight. Clerk, Home. Fol. Dic. v. 4. p. 75. Fac. Col. No 306. p. 473.