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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Brown and Others (Barbour's Trustees) v. Halliday [1883] ScotLR 20_673 (19 June 1883) URL: http://www.bailii.org/scot/cases/ScotCS/1883/20SLR0673.html Cite as: [1883] ScotLR 20_673, [1883] SLR 20_673 |
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Page: 673↓
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(See Barbour v. Halliday, July 3, 1840, 2 D. 1279.)
In a suspension of a decree in absence finding and declaring that the respondents had right to a lease for 999 years of certain heritable subjects, the respondents produced the lease (which was not, however, their writ, but was recovered by them under a diligence, and formed part of a process of removing in which their author had been ordained to remove from the subjects), and also a letter from the heir-at-law of the original tenant, from which it appeared that he had been willing to sell to their author his right under the lease. They also produced an account showing that this sum had been paid, and certain receipts for “feu-duty” of exactly the amount payable as rent under the long lease. No assignation to the lease was produced. They offered parole proof that their predecessors had possessed and had been acknowledged as tenants under the lease. The Court ( diss. Lord Rutherfurd Clark) held that the evidence was incompetent, and suspended the decree.
In 1881 the trustees of the late William Barbour of Dunmuir House, Castle-Douglas, raised an action of declarator against James Halliday for the purpose of having it found and declared that the pursuers “had the only good and undoubted right to a lease or tack (for 999 years) dated the 18th day of July 1814, granted by the deceased John M'Intyre, slater in Castle-Douglas, in favour of the deceased Samuel Halliday, who resided in Castle-Douglas, and to the subjects thereby leased, and described in the conclusions of the summons. They averred—“The said Samuel Halliday occupied the subjects let to him by the said tack until his death, which took place on or about the 8th day of May 1829. Thereafter his heir-at-law, Samuel Oliver, residing in Dumfries, sold the said lease or tack to the deceased James Barbour of Dunmuir, sometime writer in Castle-Douglas, conform to assignation in his favour. The said James Barbour continued in the possession of the said leasehold subjects down to the date of his death on 29th August 1845, when he was succeeded in
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the possession thereof by his son and general disponee, the also now deceased William Barbour, who resided at Dnnmuir House, Castle-Douglas. The said William Barbour's right to the said leasehold subjects was repeatedly acknowledged by the said John Halliday, his agent James Muir, and Hugh Halliday, who until his death, which took place on the 15th day of March 1868, uplifted the rent under the said lease from the said William Barbour as the tenant thereof. The said William Barbour remained in the undisturbed and undisputed possession thereof until shortly before his death, which happened on 21st June 1879.” They further averred that the action had become necessary owing to the defender having threatened to put other parties in possession of the leasehold subjects.
The long lease was not produced in process, nor was the assignation in favour of James Barbour.
The Lord Ordinary ( M'Laren), in respect of no defences being lodged, decerned and declared in absence in terms of the conclusions of the summons.
In July 1882 this bill of suspension of the above decree was presented by James Halliday, who stated, inter alia, the following reasons for suspension:—By disposition dated 8th July 1841 the deceased Samuel Halliday and Robert Aitken sold and disponed to John M'Intyre a plot of ground in Castle-Douglas. The subjects contained in the long lease, to which the respondents' decree in absence declared them to have right, formed the southern half of the plot of ground. Thereafter in the same year John Halliday bought the piece of ground from John M'Intyre. M'Intyre executed no disposition in favour of Halliday, but delivered over the title-deeds to him. Halliday entered into possession and openly held possession of the ground until the year 1818, when he went to America. During his absence James Barbour, the father of William Barbour (whose testamentary trustees were the respondents in the case), having had the said title-deeds deposited with him as a pledge or hypothec for the payment of the contents of a certain bill of exchange, wrongfully assumed possession of the said subjects without any title. He sold the subjects to a person named Gordon, but they were afterwards reconveyed to him by Gordon. On the said John Halliday's return, however, to this country in 1834, he presented a petition to the Steward-Substitute of Kirkcudbright for delivery of his title-deeds. The grounds of the application were that his brother Hugh had without his authority pledged his titles as security for payment of a bill of £3. In defence James Barbour maintained that he had lent money on security of the pledge of the titles to these subjects, and others adjacent, which he pleaded could not be required back till that security was purged. On the 31st March 1837 James Barbour was ordained by the Steward-Substitute to deliver them up. On appeal this interlocutor was adhered to. John Halliday having succeeded in the action against James Barbour for delivery of the titles, presented on May 23, 1837, a fresh petition craving the Steward-Substitute to decern and ordain James Barbour to remove himself, his tenants, and effects from the subjects in question, in order that he (John Halliday) might obtain possession. The long lease was produced in this process as one of John Halliday's titles. On April 26, 1838, the Steward-Substitute gave decree in terms of the prayer of the petition, and this judgment was also affirmed by the Court of Session. James Barbour ultimately removed from the whole of the subjects, including those contained in the long lease above described. In order to make a valid feudal title, John Halliday obtained from the said John M'Intyre a disposition in his favour of the subjects, dated 22d March 1838. John Halliday occupied and possessed the subjects till the year 1848, when, by disposition dated 10th July 1848, he conveyed them to and in favour of his brother Hugh Halliday, who was duly infeft. The complainer in this case was the eldest son of the said Hugh Halliday, and was thus in right of said subjects as his heir-at-law in heritage. Hugh Halliday occupied the ground till his death in 1868. Thereafter his widow continued to occupy it for her son James Halliday, the complainer, till her death, which took place on 31st July 1879. Since 1872 the said subjects had been in the occupation of Mrs Haugh, the complainer's sister, and her husband John Haugh, mason, Castle-Douglas, jointly with the late Mrs Halliday till her death, and they had since that date continued their occupation under the complainer.
In answer the respondents, besides repeating averment contained in the summons of declarator, that James Barbour, father of William Barbour, whose trustees they were, had bought right to the lease from Samuel Oliver, heir-at-law of Samuel Halliday, the original tenant, made the following averments—“When the said Hugh Halliday acquired the said subjects he raised an action for the arrears of rent under said long lease against William Barbour, and got decree, and subsequently drew the rent each year from him till he died. The suspender being abroad, no rent was paid after Hugh's death, but William Barbour occupied the subjects and let the house to his tenants, till the local authority or commissioners of police ordered the house to be pulled down, being ruinous. After this the said William Barbour, on the application of Mrs Halliday, Hugh's widow, allowed her the use of the ground contained in the lease to plant potatoes on, and in this way she, and after her John Haugh, got into possession. He married a sister of the suspender, and went to live with the widow, with whom his wife had resided and was residing. Mr Barbour made various attempts to put them out. He raised an action against Haugh, and subsequently gave notice to Mrs Halliday to quit possession, but she died before proceedings were begun. The complainer was never in the occupation of the subjects in the lease.” With reference to the litigation between Halliday and Barbour, they explained that the latter had at one time claimed the whole piece of ground, and that the decree obtained by Halliday referred to the ground other than that contained in the long lease.
The respondents produced a letter from Samuel Oliver, heir-at-law of Samuel Halliday, to Mr James Barbour, dated 7th March 1833, in which he said—“With respect to returning the £10 which Gordon paid to my grandmother for her share of the feu, I have to say, that if you do not wish to keep that part of it, she is quite
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The complainer pleaded—“(1) The respondents' statements are not relevant, nor, separatim, sufficiently specific to be remitted to probation.”
The respondents pleaded—“(2) The complainer having set forth or established no facts relevant to set aside the decree in absence, the suspension should be refused. (4) The respondents' predecessors having been acknowledged and dealt with as lessees in said subjects, and rent having been enforced from and paid by them, the complainers are not entitled to set aside the decree.”
The respondents (having taken a diligence for the purpose) recovered the lease, which formed one of the documents produced in the process at John Halliday's instance for decree of removing against James Barbour, in which, as already stated, he obtained decree. They did not produce any assignation to Barbour of the lease, but they averred on record that such assignation had been executed by Samuel Oliver, heir-at-law of Samuel Halliday, from whom they alleged that Barbour had acquired the lease.
The Lord Ordinary ( M'Laren) suspended the decree in absence complained of, and whole grounds and warrants thereof.
“ Opinion.—In this suspension I have to consider whether the respondents are able to support the decree which they obtained in absence in the Court of Session. The decree declares that the respondents have the only good and undoubted right to a lease or tack for 999 years of certain subjects in Castle-Douglas. The respondents after taking a diligence have recovered the lease, but have failed to recover the assignation, which is the foundation of their right, and in the present question I think I must hold the assignation to be non-existing. The respondents offer a series of receipts, bearing to be for feu-duty, in evidence of their right. The term feu-duty suggests a right in perpetuity; but a tenancy in perpetuity must be constituted in writing, and it is a general rule that rights constituted by writing are only transmissible by writing. Therefore, unless some authority can be shown for treating such cases as the present exceptionally, I must apply the general rule. I am not entitled to relax the rules of evidence generally applicable to heritable titles merely because this case raises a specialty which has not occurred before. I do not think that in this question a distinction can be taken between the case of a feu and that of a perpetual lease. The receipts in question would not be legal evidence of the assignation of a feu-right. If so, it would be a strange conclusion to hold that these documents were evidence of the assignment of a right of the same quality but of a different denomination. The respondents do not propose to institute an action of proving the tenor of the alleged assignation. I must therefore suspend the decree and find the suspenders entitled to expenses.”
The respondents reclaimed, and argued—A proof should in the circumstances be allowed. The respondents offered to prove that they or their predecessors in title had been in possession under the long lease since the date of its execution, and this with the writings produced was sufficient to instruct their right to the lease.— Stodart v. Dalzell, &c., December 16, 1876, 4 R. 236. There was in addition to the duplicate of the lease they had recovered a tenant's copy formerly existing which had been assigned to James Barbour when he bought the right to the lease.
The complainer replied—If the long lease was ever delivered (which was not admitted), it must have been renounced, for in 1838 the long lease itself was in John Halliday's hands as one of his titles. No assignation of it to Barbour was produced. James Barbour had laid no claim to the long lease in the proceedings in the action of removing in the Sheriff Court. (2) The receipts were not legal evidence even of a feu-right—certainly not of a right such as was claimed—and the respondents' mere possession was not necessarily referable to the lease contended for.
At advising—
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If this document is the lease, then there is an end of their case, because it must be held to be in the hands of the landlord, but it is suggested that it is the landlord's duplicate of the lease. Even in that case it is only a duplicate. The respondents say, however, that the other duplicate—the tenants'—exists or did exist, and they propose to prove that by parole evidence. The document they have got goes no further than to prove that such a lease once existed. If it is the landlord's duplicate it goes no further than that; but if it is the only lease, then it suggests very clearly that any right under it has been renounced. They propose, however, to prove that they have right to the lease, and to prove its continued existence in favour of the tenant under it, and its transference to their author, by parole evidence, with nothing to aid it but a letter by the agent of Hugh Halliday and a few receipts.
I think no reason has been suggested sufficient to induce us to make an exception from the ordinary rule of law that a party who avers such a heritable right as a lease for 999 years must support it by writ. The respondents adduce nothing in support of their claim but the lease recovered from another process in the manner I have described. They have no right to found upon it, because their author had already been ordered by a competent Court to deliver it up to its true owner, and since then there has been a process to remove their author from possession of the subjects to which they claim right. That action their author defended, but not on the ground that he had a 999 years' lease of a portion of the subjects. His defence was that he had lent money on security of the pledge of the titles to these subjects and others adjacent. That was an intelligible ground of defence, and the only position he took in that action. His pleas, however, were repelled, and decree of removing was pronounced against him. That result is certainly inconsistent with his being in right of a 999 years' lease of a part of the subjects from which he was decerned to remove. Throughout the whole course of that action he never suggested that he was in right of such a lease, and it is absurd to say that if he had had such a right he would not have pleaded it. He was accordingly ordained to remove in 1838.
The respondents, however, now produce some receipts, in whose handwriting we are not told, from a Hugh Halliday, granted to their author for ground and feu rent about the years 1858 and 1860, and found on them as establishing their rights.
All the original parties to these transactions are now dead. For the last sixteen years the mother of the ostensible proprietor has been living in the premises in dispute without paying any rent. In these circumstances I think this matter an exceptionally strong case for adhering to the rule of law against admitting parole evidence of such a heritable right as is claimed, than one in which we should depart from that rule.
I am, then, for adhering to the Lord Ordinary's interlocutor.
The
Now, the first question is as to whether the respondents have made sufficient averments to support the decree in absence sought to be suspended, and I look on this as the most difficult part of the respondents' case, for they are not only seeking to maintain possession but to declare a right as existing in them. They say they produce a lease which they acquired by a transaction with the heir of the original tenant Now there is a certain amount of proof offered of this averment—(First) A letter from a person said to be the heir, willing to sell to Barbour for £10, and said to be completed by Barbour paying £10, the account being produced. (Second) There is a recognition of that possession by the landlord as flowing from some title when we see receipts for 8s. a-year as feu-duty or feu-rent, which is exactly the sum payable under the long lease. Now, it is said that all this is to be disregarded by reason of what took place in the process of removing. But I confess that I am not moved by it all. There is nothing exceptional in it except the question of the security or proprietary right which Barbour held. There was no question with regard to the leasehold property at all. Decree was pronounced for the whole subjects, but it was not carried out for some reason for the leasehold subjects, for the allegation is that Oliver continued to possess notwithstanding the decree, and paid ground rent from time to time, and even the ground rent was sued for and received by the proprietor. Now, whatever was the effect of the decree, if we accept the allegation of the respondents here, it is plain it was never acted upon, not because Barbour pleaded the right as a tenant in that action (which he did not), but because after decree had been pronounced he bought the lease up and the landlord recognised him as tenant. But this leaves the respondents in the difficulty as to whether they can connect themselves with the long lease. I think they should have brought the heir into the case to declare the lease in a question with him, and if this had been done I think there would have been less difficulty in their case than if they had tried the question with the proprietor. But I think where they have not followed it out it would have been safe to allow a proof, so that the whole matter might be cleared up.
The Court adhered.
Counsel for Complainer— Pearson— Armour. Agents— Beveridge, Sutherland, & Smith, S.S.C.
Counsel for Respondents— Scott— Low. Agents — Ronald & Ritchie, S.S.C.