Scottish Court of Session Decisions

Subject_1 PERSONAL OBJECTION.

Archibald Tod
v.
Elizabeth Wells and Others

Date: 17 January 1782
Case No. No 36.

not infeft, having granted a lease, if, upon the sale being reduced, the lessee can challenge his author's right.

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Archibald Megget took in lease the lands of Gosford, belonging to Captain Henry Wedderburn. Soon afterwards, Captain Wedderburn, then in India, authorised certain commissioners to sell these lands, which were purchased at a public roup by Sir John Halket. But though the commissioners were thus empowered to sell the lands, they had received no authority to grant a disposition, or to give sasine of them.

In the mean time, Sir John Halket and Archibald Megget entered into a new lease, for a shorter term than that of the former; but, on account of greater latitude being allowed in the culture, a higher rent was stipulated. Captain Wedderburn, however, having died, and the necessary writings remaining unexecuted, Sir John Halket, without opposition, obtained decreet reducing the sale. Megget possessed the farm till the expiry of the term stipulated in the new lease. Upon this, Mr Tod, factor appointed by the Court on the estate, of which a process of sale had been brought at the instance of Captain Wedderburn's apparent heir, raised an action against Elizabeth Wells, and other Representatives of Megget, then dead, for payment of the arrears which had been due by him, according to the new lease. They, being desirous to abide by the former one, in which the term of endurance was larger, and the rent smaller than those of the latter;

Pleaded in defence; Sir John Halket never had more than a personal right to the lands, and therefore could not grant a lease of them to be effectual against singular successors; those successors at least who do not derive right from him. Nor, for the same reason, could he effectually relinquish or evacuate a subsisting lease of those lands. If so, the defenders still continue to be bound by their former one; which, as it is thus binding against them, is certainly not less obligatory in their favour. Being then a subsisting lease, the defenders are willing to hold by that first bargain, in opposition to which the present action cannot proceed.

Answered; Sir John Halket having been truly proprietor of the estate, his titles to which he might at any time have completed by adjudication in implement, leases granted by him would have been effectual against the heir of Captain Wedderburn. In this case then his discharge of a prior lease is not less valid and binding. Nay, though he had only been a putative proprietor, the lessee would have become effectually bound on the true proprietor's recognising his acts; and this the pursuer, in the present proprietor's name, now does. The second lease, therefore, ought to regulate the claims of the parties; and on it the present action is founded.

Observed on the Bench; The lessee, in virtue of the new tack, continued the possession during the full period of its endurance. He was not, nor are his Representatives, entitled to challenge or object to the right of his author.

The Lord Ordinary had pronounced an interlocutor, finding, “That the lease granted by Sir John Halket on the supposition of his being proprietor of the estate of Gosford, which it was afterwards found he was not, was not obligatory on the defenders;” but the Court altered that judgment, and

“Found, That the above mentioned lease was obligatory on the defenders.”

Lord Ordinary, Alva. Act. Tait Alt. D. Græme. Clerk, Orme. Fol. Dic. v. 4. p. 78. Fac. Col. No 22. p. 42.