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Scottish Court of Session Decisions


You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Nisbet v. Aikman [1866] ScotLR 1_105_1 (12 January 1866)
URL: http://www.bailii.org/scot/cases/ScotCS/1866/01SLR0105_1.html
Cite as: [1866] ScotLR 1_105_1, [1866] SLR 1_105_1

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SCOTTISH_SLR_Court_of_Session

Page: 105

Court of Session Inner House Second Division.

1 SLR 105_1

Nisbet

v.

Aikman.

Subject_1Landlord and Tenant
Subject_2Removing.

Facts:

Suspension of a decree of removing presented by a landlord against a tenant, on the ground that the suspender was not the tenant of the petitioner for the removing, refused.

Headnote:

Page: 106

This was a note of suspension at the instance of James Nisbet, Ferniegare, near Hamilton, and others, against H. H. Robertson Aikman, Ross House, Hamilton, of a decree of removing pronounced against them in the Sheriff Court of Lanarkshire. The respondent had presented a petition to the Sheriff setting forth that he was proprietor of certain subjects at Ferniegare occupied by the present complainers, and craving the Sheriff to grant warrant of summary ejection and removal against them. The defence to this petition was that the petitioner had no title, that the warning was defective, and that the defenders never having been the tenants of the petitioner, the summary proceeding by petition on an execution of warrant was incompetent. Decree was pronounced against the defenders, who thereupon presented this note of suspension. It appeared from the complainer's statement that he had been proprietor of the said subjects, and had disponed them to the Commercial Bank, on account of certain advances, by an ex facie absolute disposition, qualified by a back letter. The Bank had made other advances to him, and had thereafter sold the subjects to the respondent. In so doing the complainer alleged that the bank proceeded in violation of his right under the back letter, and he proposed to raise a reduction of the disposition in the respondent's favour, in respect that the bank had no right to sell the said subjects, of which he described himself in the suspension as proprietor. The Lord Ordinary (Mure) passed the note in order that the questions raised might be deliberately considered. To-day the Court recalled the Lord Ordinary's interlocutor, and remitted to him to refuse the note.

Judgment:

The Lord Justice-Clerk said the Lord Ordinary had passed the note as the case raised points requiring more deliberation than they could receive in the bill; and probably if he had been in the position of the Lord Ordinary he would have done the same. But when the case came before the Court it was obvious that it was of such a nature as to require disposal at once, and accordingly they had had a full argument. The petitioner in the action of removing sets himself out as being the heritable proprietor of a dwelling house, &c., at Ferniegare. That is his title, and in support of it he produces a disposition which is registered, and therefore equivalent to disposition and infeftment. It further appears that he acquired the subjects as purchaser from the Commercial Bank. The petitioner further sets out that the subjects are occupied by the respondents as tenants under him, and that he has from time to time summoned them to remove, and he produces a percept and execution of warning in support of that. There is no doubt that the warning was timeously given. Upon these grounds he prays for summary ejectment of the respondents. Now, ex facie, in that petition the proceedings are perfectly regular, and I may just say, in passing, that there is no irregularity or impropriety in a petitioner seeking such a summary remedy, setting out that the respondents are either tenants or pretended tenants, because it may turn out that the title to tenancy is liable to objection, and I cannot think that merely because the title to tenancy is liable to objection the respondents could object to the petition. But all depends on the nature of the defence. If the defender had alleged in answer to the petition that he was proprietor, and thereby had a title to compete with him, the proceedings could not have proceeded before the Inferior Court. But that is not his defence. His defence is (r) that the summary remedy asked is incompetent, because the parties do not stand towards one another as lessor and lessee. That is a complete admission that he has not a good title of tenancy, and is therefore not a good answer to the petition. I can well enough understand the petitioner bringing a summons of removing, and not knowing very well whether the respondents had a good right of tenancy; but it would have been rash for him to proceed without warning. But after the defender said that he was not tenant, I hold his mouth shut as to the remaining objections, for they are all about the warning. No doubt there is, in a certain sense, another defence, to the effect that the pursuer has no title. It is said that Nisbet was proprietor of the subjects; but that is no allegation of property; and there is no production of any title by the defender. It appears to me, therefore, that in that state of matters the Sheriff-Substitute could do nothing else but grant decree of removing. His Lordship then adverted to the case of Waterstone v. Mason, June 30, 1848 ( 8 D. 944), which had been pleaded in argument as being counter to the judgment of the Sheriff-Substitute, and said that in that case the petitioner in the inferior Court libelled a missive of lease, and the allegation was that the defender possessed on that. The question raised on the merits was a competition of heritable rights, and the points decided were (1) that the petitioner, having taken his stand expressly on a missive of lease, he could not turn round and say that the respondent was not a tenant but a vitious possessor; and (2) that there was a competition of heritable rights in the inferior Court which the Sheriff could not decide. There was no such question here. It is a removing against a party who either was or might be supposed to be tenant, and who, when he admits that he is not tenant, admits enough to ground decree of removal. His Lordship continued—I do not think it necessary to fix any general principle beyond this, that a petition framed in the manner in which this is may competently proceed in the inferior Court, whether the defender has a good title of tenancy or not. The plea of lis alibi pendens, though stated in the inferior Court, not being insisted on in the note of suspension, requires no consideration.

The other Judges concurred.

Counsel:

Counsel for Complainer— Mr Gordon and Mr Scott. Agent— Mr David Crawford, S.S.C.

Counsel for Respondent— Mr Patton and Mr Lee. Agents— Messrs Hamilton & Kinnear, W.S.

1866


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URL: http://www.bailii.org/scot/cases/ScotCS/1866/01SLR0105_1.html