Gillespie v Riddell
| Jurisdiction | Scotland |
| Judgment Date | 20 February 1908 |
| Date | 20 February 1908 |
| Docket Number | No. 88. |
| Court | Court of Session |
Lord Salvesen, Lord Kinnear, Lord President, Lord M'Laren.
EntailPowers of heir in possession LeaseOutgoingObligation in lease to take over sheep stock Transmission of obligation against succeeding heir of entailCustom.
In an action brought by the tenant of a sheep farm on an entailed estate in Argyllshire, on the death of his landlord, against the next heir of entail, for declarator that the landlord's obligation in the lease to purchase the tenant's stock of sheep at its termination was binding on the defender, the pursuer averred that from time immemorial such obligations had been a universal condition of sheep farm leases in the north and west of Scotland, founded on the considerations (1) that sheep stock in that part of the country requires to be acclimatised to a particular farm or district, and (2) that stock habituated to a certain holding do not wander beyond the boundaries, and thus enable march fences to be dispensed with.
The Lord Ordinary (Salvesen) held that the pursuer's averments were relevant and allowed a proof.
The defender having reclaimed the Court assoilzied the defender, holding that although the lease (being followed by possession and conferring a real right under the Act 1449) was an alienation struck at by the fetters, it was valid as a necessary act of administration, binding on the estate, but that the obligation to purchase the sheep was a personal obligation, which did not burden the estate, and was not binding on the next heir of entail.
ProcessSummonsDefenderSuccessionClaim against general estate of testatorCompetency of suing individual legatee.
Held that an individual legatee cannot be called upon to discuss the validity of a claim against the testator's estate, which may or may not affect his legacy, in an action to which the general representatives of the testator have not been made parties.
At Whitsunday 1903 Charles Gordon Gillespie, Strontian, Argyllshire, entered upon possession of the farm of Ardery, on the estate of Sunart, Argyllshire, under a lease dated 26th May and 6th June 1903, between himself and Sir Rodney Stuart Riddell, Baronet, heir of entail in possession of the estate of Sunart. The lease, which was for fifteen years from Whitsunday 1903, with an option in favour of either party to terminate it at the end of the fifth or tenth year, contained the following clause:He (i.e., the tenant) shall deliver at the end of the lease to the landlord or incoming tenant, as far as possible, not more than the same number of sheep, and the same classes, as he receives on his entry, and the proprietor agrees that the second party (i.e., the tenant) or his representatives shall receive the same prices as he paid on his entry, providing always that the landlord or incoming tenant shall not be bound to take over more ewes, ewe hoggs, or tups than the tenant took over at his entry; and, further, the proprietor or incoming tenant will not be bound to take over more than fifty of the following three classes, namely:One, two, or three years old wedders, over and above the number of stock the tenant took over at his entry.
Sir Rodney Riddell died on 2d January 1907, and was succeeded in the entailed estate of Sunart by the next heiress of entail, his sister, Louisa Margaretta Riddell, in virtue of the destination contained in the deed of entail affecting the estate of Sunart.* Shortly after succeeding to the estate Miss Riddell intimated that she repudiated the obligation undertaken by her predecessor to take over the sheep stock at the termination of the lease, and also gave notice that she would exercise the option of terminating the lease at the end of the fifth year, viz., Whitsunday 1908.
On 7th September 1907 Charles Gordon Gillespie brought an action against Miss Louisa Margaretta Riddell, heritable proprietrix of the estate of Sunart, as such proprietrix and also as an individual,
in which he concluded (first) for declarator that by the terms of the lease with the pursuer, the late Sir Rodney Riddell. undertook a binding obligation that on the termination of the lease the sheep stock would be taken over at the prices mentioned; (second) for declarator that the said obligation is binding upon the defender as heiress of entail in possession of the said lands and estate in succession to the said Sir Rodney Stuart Riddell, or, alternatively, in the event of it not being so found, that the pursuer should be granted certain specified facilities for removing and disposing of his stock; (third) for declarator that the whole heritable and moveable estate of the deceased Sir Rodney Stuart Riddell is liable for the said obligation; (fourth) for declarator that the defender, who was a special legatee to certain moveables, as a beneficiary under Sir Rodney Riddell's trust-disposition, was liable for the said obligation to the extent of her beneficial interest in that estate, or was liable to that extent subsidiarie after the trustees and executors had been first discussed.
The pursuer averred, inter alia;(Cond. 9) An obligation binding the tenant to deliver the sheep stock on his farm at the termination of his lease to the landlord or incoming tenant, and a corresponding obligation on the landlord to pay for the stock at a fixed or valued rate, is, and has from time immemorial been, a universal condition of sheep farm leases in the north and west of Scotland, and is founded on the considerations (1) that sheep stock in that part of the country requires to be acclimatised to a particular farm or district, and (2) that stock habituated to a certain holding do not wander beyond the boundaries, and thus enable march fences to be dispensed with. For these reasons the condition is one entirely in the interest of estates and of the successive proprietors thereof, who would find their estate holdings practically unlettable if the stock were displenished at the termination of each lease. These general considerations apply particularly to the estate of Sunart, the leases on which, including those granted by the entailer, have always contained the said condition, and they apply to the farm of Ardery, and to the obligation with regard to stock in the pursuer's lease. Without the said condition the said farm could not have been let in terms of the deed of entail for the highest rent that can be got from a good and responsible tenant The said obligation was accordingly a condition inter naturalia of the lease, and is binding upon the defender, who has adopted the lease and insisted upon payment of the rent due thereunder.
The pursuer also averred that on his entry in the lease he had taken over the sheep stock at the price of 1319, 1s. 11d., and that the only period of the year at which it was possible to remove and realise sheep stock, except at a ruinous loss, was between the months of August and October. He further set forth the extent to which the defender was a beneficiary under the will of the late Sir Rodney Riddell, and averred that as Sir Rodney's trustees and executors were resident in England and refused to accept the jurisdiction of the Scotch Court, he had been unable to make them parties to the action.
The pursuer pleaded in support of the first two conclusions of the summons;(1) The late Sir Rodney Stuart Riddell, having undertaken a valid obligation in his lease with the pursuer that the pursuer would be paid for his sheep stock at the termination of his lease, the pursuer is entitled to decree of declarator in terms of the first conclusion of the summons.(2) The obligation in question being inter naturalia of the lease under which the defender is now landlord, et separatim, the defender having adopted the lease, the pursuer is entitled to decree in terms of the first alternative of the second conclusion of the summons. He also stated pleas in support of the other conclusions of the summons.
The defender pleaded, inter alia;(1) The trustees and executors of Sir Rodney Riddell not being parties to the action, the defender is entitled to have the third and fourth conclusions thereof dismissed as incompetent against her. (2) The averments of the pursuer are irrelevant and insufficient to support the conclusions of the action, which should be dismissed. (4) There being no obligation to take over the sheep stock at the termination of the lease founded on which is prestable against the defender, either as heiress of entail in possession or separatim as an individual, she is entitled to be assoilzied from the conclusions of the action. (5) In respect that the obligation to take over the sheep stock could not be made to affect the entailed estate, it cannot affect the defender as heiress of entail in succession to the granter of said obligation.
On 4th December 1907 the Lord Ordinary (Salvesen) pronounced this interlocutor:Sustains the first plea in law for the defender, and dismisses the third and fourth conclusions of the action, and decerns: Quoad ultra repels the second plea in law for the defender, and allows to the parties a proof of their respective averments.*
The defender reclaimed. The case was heard on 16th and 17th January 1908.
Argued for the defender and reclaimer;The Lord Ordinary was wrong. This was an effort to saddle a succeeding heir of entail with a personal obligation. That was incompetent, for an heir of entail did not take as representing his immediate predecessor, he took as heir of the entailer. The sole obligations undertaken by the preceding heir for which he was responsible were such as had been made to affect the estate. An obligation could only be made to affect the estate if it fell within the exceptions to the prohibitions against burdening the estate with debt, and such an obligation as this was not within these exceptions. The analogy from meliorations bore out this view.1 There was no force in the argument that the succeeding heir of entail had adopted the lease with all its stipulations. She...
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