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Scottish Court of Session Decisions >>
The Duke of Gordon v John Leslie, and Others. [1791] Mor 5444 (8 March 1791)
URL: http://www.bailii.org/scot/cases/ScotCS/1791/Mor1305444-016.html Cite as:
[1791] Mor 5444
Subject_1 HERITABLE and MOVEABLE. Subject_2 SECT. I.
Nature and Distinctions of each.
The Duke of Gordon v. John Leslie, and Others
Date: 8 March 1791 Case No. No 16.
The executors of a tenant not liable for the rents of these years of which the heir was entitled to reap the crop.
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William Leslie was the tacksman of a farm belonging to the Duke of Gordon. He was also creditor to his Grace by a bill for L. 220.
At William Leslie's death, his moveable effects descended to John Leslie, and his other younger children, as his nearest in kin; while the lease, which was a beneficial one, and did not expire for many years after, devolved to his eldest son as his heir.
An action of multiple-poinding, brought by the Duke of Gordon soon after William Leslie's death, for the purpose of enabling him to pay with safety the contents of the bill already mentioned, was not brought to a conclusion till 1790. At this time, not only the rent for crop 1788, but that for the following year, was unpaid; and for these, as well as for the rents of the subsequent years, the eldest son of the original tacksman having become bankrupt, his Grace claimed retention out of the sums due by him. In support of this claim, he
Pleaded; Those engagements which in this case the original tacksman came under to his landlord were a burden, while he lived, on his whole funds, whether heritable or moveable. Had these funds never been appropriated by his family after his death, his landlord would have been authorised to attach any part of them for his payment; and so too, although the funds have been regularly transmitted in succession to the legal heirs, every one of those heirs, in representing him, must be liable; Stair, book 3. tit. 5. § 13; b. 4. tit. 22. § 22; Durie, 17th Feb. 1633, Kinnaird contra Yeaman, Sect. 7. h. t.; 19th July 1637, Lord Innerwick contra Lady Smeiton, Ibidem.
Answered; The general principles which have been stated are unquestionably just; but they fail in their application to the present case.
A lease is in its nature an agreement founded on a delectus personæ, and therefore should be at an end when the lessee dies. From equitable considerations, however, the benefit of this contract is now held to transmit to the heir of the lessee. But as no part of this benefit can be claimed by the executors, no reason can be given why they should be exposed to any risk.
In the case of mercantile partnership, where the share of a deceased partner is, by special agreement, given to one of his sons nominatim, his other children, if the concern was a lucrative one at the time of his death, have never been considered as liable for any part of the subsequent loss. So too, in the case of a feu-right, although the executors of the vassal may be required to pay the feu-duties incurred before the succession opened, no instance can be shown, in which, upon the subsequent bankruptcy of the heir, the superior has attempted to render them liable.
The present claim is not founded in the meaning of the parties, the lessee and his heirs alone being debtors in the obligation, If listened to, it would be attended with very unjust consequences, the executors having no way of securing themselves against the loss arising from the heir's bankruptcy. Neither is it necessary for the landlord, if he is sufficiently attentive, by exercising in due time his right of hypothec.
The Lord Ordinary found ‘the Duke of Gordon entitled to retention out of the sum in his hands, as craved.’
A reclaiming petition was given in, which was followed with answers.
The Court, considering the crop of 1788 as belonging to the executors, were of opinion, that they were liable for the rent of that year.
But as to the rents of the subsequent years, a great majority were of opinion, that the heir alone, after being acknowledged by the landlord as tenant, could be sued for these rents.
The Lords ‘found the Duke of Gordon entitled only to retention of his rent for crop 1788.’
Ordinary, Lord Dreghorn.Act. Tait.Alt. Dickson.Clerk, Gordon.
Fac. Col. No 176. p. 359.
