Scottish Court of Session Decisions

Subject_1 HUSBAND and WIFE.
Subject_2 DIVISION IV.

The Husband's powers with regard to the management of the common stock, and of the Children.

Margaret Grieve, and her Husband, for his interest,
v.
George Pringle, and his Tutor ad litem,

Date: 15 June 1797
Case No. No 149.

An unsigned draught of a lease, written by the husband of the proprietrix, and delivered to the tenant, followed rei interventu, sustained as a valid lease, in a removing brought by the proprietrix, and her husband for his interest.

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Margaret Grieve, and James Usher, her husband, for his interest, brought a removing against George Pringle, whose father, in 1795, died in possession of a farm belonging to Margaret Grieve.

The pursuers contended, That the father had possessed, by a verbal agreement, since Whitsunday 1793, when a written lease in his favours expired.

A tutor ad litem was named for the defender, who produced an unsigned draught of a lease, written by Usher, giving the defender's father a lease of the farm for 15 years, from Whitsunday 1793, at an increased rent. He likewise produced several receipts for the rent granted by Usher. One of them bore to be “for the first half year's rent of the second tack, beginning at Whitsunday 1793;” and the next ‘for the second half year's rent of the new tack.’ He further averred, that his father, on the faith of his having a lease for a number of years, had expended a large sum on the farm, inclosing, liming, and improving moor; and he contended, that, upon the whole, the pursuers were debared from pleading the defects in the draught rei interventu; No 52. p. 4392; 1788, Dr Drummond against Scott, see Appendix.

The pursuers, on the other hand, maintained, that the draught contained merely the terms on which Usher was willing to grant a lease; that these not being agreeable to the tenant, he preferred possessing by a verbal agreement from year to year, till he should procure another farm, and that the receipts related to this state of possession. They also offered to prove, by a variety of circumstances, the understanding of parties, that there was no lease for a longer period; and denied that any improvements had been made by the tenant upon the faith of there being one.

They likewise stated, in point of law, that this case was very different from those where informal writings had been supported; because, from the scroll not being signed, neither party could suppose it binding; Erskine, b. 3. tit. 2. § 4; and besides, the husband had no power to grant a lease, without consent of his wife.

The Sheriff decerned in the removing.

A bill of advocation having been passed, the Lord Ordinary reported the cause on informations.

Observed on the Bench; The scroll, when taken along with the possession, receipts of the rent, and other circumstances, affords evidence of the understanding of parties, that there was a finished transaction, and therefore is a good defence against the removing. A husband may, without his wife's consent, grant a lease of her property to last during his administration of it.

The Lords assoilzied the defender.

A reclaiming petition was (4th July) refused, without answers.

Lord Ordinary, Swinton. Act. Geo. Fergusson, Jo. Dickson. Alt. G. J. Bell. Clerk, Menzies. Fac. Col. No 36. p. 82.