Scottish Court of Session Decisions

This was a petition at the instance of tutors-nominate for authority to grant a lease.

The pupil succeeded to an entailed estate in Berwickshire on the death of his grandfather, Major Brown, in 1866. The estate had been leased by Major Brown, along with some unentailed land belonging to him, to Mr James Weatherley, who held a lease of the whole lands, entailed and unentailed, as one farm, for a period of nineteen years from Whitsunday and separation of crop of 1848, at a rent of £400 per annum, the tenant also paying certain rent charges payable to Government in respect of money spent on drainage and improvement.

The unentailed lands are now held by Major Brown's trustees.

Weatherley's lease expiring on Whitsunday and separation of crop of 1867, Major Brown's trustees and the petitioners obtained a valuation of the lands from Mr Dickson, Saughton Mains. Mr Dickson estimated the rent to be got for the whole lands at £522, £442 being for the entailed lands. This valuation proceeded on the footing of a nineteen years’ lease being granted, and certain necessary repairs executed on the farm-house and offices, the proprietor paying the remainder of the rent charges, which expire in a few years.

The tutors-nominate of the pupil now presented a petition to the Court, stating the facts above set forth, and that Major Brown had, shortly before his death, been in treaty with the present tenant, Mr Weatherley, for a renewal of the lease; that Mr Weatherley had made an offer to retake the whole land at an advance of rent slightly above the estimate of Mr Dickson, the effect of this offer being an immediate increase of rent of £37, 5s. for the entailed lands, rising gradually as the rent charges fall in, to $89, 5s., or upwards of twenty per cent. upon the present rent; and craving authority to let the entailed lands to Mr Weatherley at the rent offered by him, or otherwise to let them at such rent as might be obtained.

The Court made the usual remit to the Junior Lord Ordinary, who remitted to Mr Kermack, W.S., to report whether it would be for the interests of the pupil and succeeding heirs of entail that the authority craved by the petitioners should be granted. Mr Kermack, after obtaining another report from Mr Dickson as to certain matters in the petition, reported in favour of the petition. The entailed and the unentailed lands were proposed to be included in separate leases.

The Lord Ordinary then reported the case to the Inner House. The Court thought there were two peculiarities in the case—(1) That there had been no advertisement of the lands, so as to secure competition; and (2) that the valuation founded on in the petition was obtained ex parte. They inclined to hold that if it was the practice in such cases to dispense with advertisement, as was indicated by the Lord Ordinary, it would be necessary to make a judicial remit for a valuation of the lands.

The Lord Ordinary accordingly remitted to Mr Low, Berrywell, who gave in a report agreeing substantially with that given by Mr Dickson, and recommending that the petitioners should be authorised to let the lands to Mr Weatherley at the rent offered by him. Mr Low reported against the expediency of advertising the farm for competition.

The Lord Ordinary again reported the case.