Gardiners v Stewart's Trustees
| Jurisdiction | Scotland |
| Judgment Date | 16 June 1908 |
| Date | 16 June 1908 |
| Docket Number | No. 142. |
| Court | Court of Session |
Lord Guthrie, Lord President, Lord M'Laren, Lord Kinnear.
LeaseOutgoing TenantObligation to take over sheep stockTransmission of obligation against representatives of lessorEntailLease by heir of entailExecutor.
An heir of entail in possession of an entailed estate granted a lease of a sheep farm which contained this clause:The proprietor binds and obliges himself that he or the then incoming tenant shall purchase the waygoing blackfaced hill sheep stock at the expiration of this tenancy at the valuation of two arbiters mutually chosen. The granter of the lease died and was succeeded in the entailed estate by the next heir of entail, who disentailed and died before the termination of the lease. The lease being about to terminate, his representatives and the incoming tenant both intimated to the outgoing tenant that they declined to purchase the sheep stock. The tenant then sought to enforce the obligation against the trustees and executors of the granter of the lease by presenting a petition against them for the appointment of an arbiter to value the sheep stock.
Held that the obligation had transmitted against the trustees and executors of the granter, and that they were bound to appoint an arbiter.
By lease dated 25th and 28th January 1896 Horatio Granville Murray Stewart, heir of entail in possession of the entailed estate of Cally, in Kirkcudbrightshire, let to Robert Gardiner and Alexander Gardiner the farms of Killeron and Orchars, forming part of that estate, for a period of nineteen years from Whitsunday 1896, with a break in favour of either party at Whitsunday 1908.
The lease contained this clause:And the tenants hereby undertake to purchase the blackfaced hill sheep stock usually kept on the said farms, and also the last crop of grain and the dung on the lands at their entry, and the threshing-mill, grates, and bells at Killeron, all at the valuation of arbiters or oversman as aforesaid. Further, the tenants bind and oblige themselves and their foresaids to sell, and the proprietor binds and obliges himself that he or the then incoming tenant shall purchase, the waygoing blackfaced hill sheep stock usually kept on the lands at the expiration of this tenancy, and not exceeding nineteen hundred head in all on the farm of Orchars, and two hundred head on the farm of Killeron, and the last crop of grain under this lease, the manure made upon the lands from the time of the input of the last green crop, and the threshing-mill, grates, and bells at Killeron, all at the valuation of two arbiters mutually chosen, or oversman as aforesaid, at the usual times.
Mr Murray Stewart died in May 1905, leaving a trust-disposition and settlement whereby he appointed the Honourable William James Hewitt and certain others to be his trustees and executors, and disponed to them his whole estate, heritable and moveable, in Scotland for the purposes therein mentioned. He also left a will in English form conveying to the same parties, as his trustees and executors, the residue of his real and moveable property situated in England and Ireland.
Mr Murray Stewart was succeeded in the entailed estate of Cally by the next heir of entail, Colonel James William Murray Baillie, who disentailed the estate, and thereafter conveyed it to a body of trustees for certain specified purposes. Colonel Murray Baillie died in March 1906, and at Whitsunday 1906 his trustees were the heritable proprietors in possession of the estate of Cally, including the farms of Killeron and Orchars.
The Messrs Gardiner, the tenants of these farms, took advantage of the break in the lease, and gave notice to Colonel Baillie's trustees that they would terminate their tenancy at Whitsunday 1908. Colonel Baillie's trustees intimated that they were not prepared to take over the sheep stock at the termination of the lease, and the incoming tenant of one of the farms (the other remaining unlet) also declined to take over the stock on his farm. The Messrs Gardiner then called upon Mr Murray Stewart's trustees to fulfil the obligation undertaken by the granter of the lease, and nominated Mr George G. B. Sproat to act for them as arbiter in the valuation of the sheep stock. Mr Murray Stewart's trustees repudiated the obligation to take over the sheep stock, and declined to appoint an arbiter.
On 29th April 1908 the Messrs Gardiner presented a petition under section 3 of the Arbitration (Scotland) Act, 1894 (57 and 58 Vict. cap. 13), to which Mr Murray Stewart's trustees were called as respondents, craving the Court to appoint an arbiter to act along with Mr George G. B. Sproat in the valuation of the sheep stock. Answers were lodged for Mr Murray Stewart's trustees in which they stated, inter alia:The respondents are not parties to the lease within the meaning of section 3 of the Arbitration (Scotland) Act, 1894, and there is no agreement between the petitioners and the respondents to refer the valuation of their sheep stock to two arbiters. The obligation in the lease to take over the sheep stock did not become exigible during the period when Mr Murray Stewart was proprietor of the subjects, and said obligation was intended by both parties to the lease only to be, and could only be, prestable against the person who should be...
To continue reading
Request your trial
-
Macdonald Estates Limited V. Ncp
...741, Forbes v Underwood (1886) 13R 465, Logan v Leadbetter (1887) 15R 115, Graham v Mill (1904) 6F 886 and Gardiners v Stewart's Trustees 1908 SC 985, and by the article on Arbitration contributed by Lord Hope of Craighead to the Stair Memorial Encyclopaedia of the Laws of Scotland (1999), ......
-
Cooper's Executors v Edinburgh District Council
...are enforeceable, after the death of one party to the contract, by and against his representation: Gardiners v. Stewart's Trustees 1908 S.C. 985. The council, however, argues that the ordinary rule does not prevail in this case because certain provisions of the Act of 1987 exclude it by nec......
-
Waddell v Howat
...(3rd ed.) p. 132; Gillespie v. Riddell, 1908 S. C. 628, Lord President Dunedin, at pp. 644 and 645; Gardiners v. Stewart's Trustees, 1908 S. C. 985; Riddell's Executors v. Milligan's Executors, 1909 S. C. 3 (1847) 9 D. 1557. 4 Ibid., at p. 1564. 5 Stewart v. Earl of Dunmore's Trustee, (1837......
-
Beardmore & Company v Barry
...435. 3 1910 S. C. 868. 4 [1899] 1 Ch. 627. 5 [1897] 1 Ch. 575. 6 125 L. T. 690, (H. L.) 127 L. T. 189. 7 Gardiners v. Stewart's Trustees, 1908 S. C. 985, Lord President Dunedin at p. 989; In re WorthingtonELR, [1914] 2 K. B. 299, Horridge, J., at p. 310, Sir Samuel Evans, P., at p. 315; War......
-
Transmissibility of Lease Conditions in Scots Law – A Doctrinal-Historical Analysis
...obligations were held not to transmit against a successor landlord: see Panton v Mackintosh 1903 SLT 763; Gardiners v Stewart's Trustees 1908 SC 985; Gillespie v Riddell 1908 SC 628, affd [1909] SC (HL) 3. The obligation was therefore deemed qualitatively separate from the lease, even thoug......