United Kingdom House of Lords Decisions

“I, as administrator-in-law for my son, Alexander Oliphant Murray, as proprietor of the lands of Pitheavlis, authorize you to prepare building leases, of five acres each, for yourself and children, at the present rents, of ninety-nine years, as authorized by Act of Parliament; as also to prepare a lease to you, of nineteen years, of the quarry of Pitheavlis, at ten pounds of rent per annum, with liberty to open others, if wished, on the grounds. The building leases to be on the grounds you point out proper on the estate, and with the regular qualifications attending such leases, according to Act of Parliament; and I bind myself to implement the same when drawn out. I am,” &c.

Nothing farther appeared to have been done till 1822, when Pentland caused a draft of two leases to be prepared, one in favour of himself, of five acres of the lands of Greenyards, and another in favour of his son Colin, of four acres of the lands of Unthank and one acre of Greenyards. These drafts were said to be marked thus:

“I approve, and to be extended. A. O. Murray.”

At this time Mr. Murray was about seventeen years of age. The leases were extended and signed by Lord Elibank, but not by Mr. Murray, who, having gone abroad, granted a commission in favour of Lord Cringletie and others. Lord and Lady Elibank about the same time executed a conveyance of their property to trustees for behoof of their creditors.

The commissioners of Mr. Murray, with concurrence of the trustees, presented a petition in 1825 to the sheriff of Perthshire, stating, that Pentland was in arrears of rent for the lands of Greenyard and Unthank from Candlemas 1823, and praying for warrant of sequestration and of sale. In defence, Pentland founded upon the above documents, and averred that, in virtue of them, he and his son had possessed the lands, and on the faith of them had erected buildings. ^* Of this averment the sheriff allowed a proof, on advising which he pronounced this interlocutor:—

“Finds nothing proven tending to show any alteration in the mode of occupation of Greenyards and Unthank, after Whitsunday 1822, from what previously

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* Pentland farther alleged that he had a claim of compensation against Lord Elibank, who had right to the rents jure mariti, and was due him large sums; but both debt, and right to compensate, were denied.

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took place, from which it can be inferred that at the said term a change of possession was adopted, and the building leases then entered upon; but that, on the contrary, the same mode of possession continued after that term as was enjoyed by the defender previous thereto, when he occupied the lands of Greenyards at a rent of £60, and the lands of Unthank at a rent of £30; refuses, in these circumstances, to sustain the building leases founded on by the defender, which are incomplete, and do not appear to have been acted upon;”

and therefore decerned in terms of the prayer of the petition. Pentland having complained by advocation, the Lord Ordinary pronounced this judgment:—

“Finds, that none of the documents founded on by the advocator (whether taken individually or collectively) are, even if the same had been followed by possession, sufficient to constitute a lease, binding and effectual upon the Honourable Alexander Murray, who was, at the date thereof, under the age of majority, but above the years of pupillarity: Finds, that even if the said documents could have been held, if followed by possession upon his part, to be sufficient for constituting the contract of lease between the parties, there has been no proof of such possession adduced, or offered to be brought; and that the proof led in the inferior Court is, upon this point, altogether defective and incomplete: Therefore repels the reasons of advocation, remits the cause simpliciter to the sheriff, and decerns; finds the advocator liable in expenses.”

Against these interlocutors the appellant reclaimed; but the Court, on the 3d of March 1829, adhered. ^*

Pentland appealed.

Appellant.—To constitute a real right of lease, it is not necessary, according to the law of Scotland, that there should be a formal probative deed; it is sufficient if there be any writing intervening between the parties, and that possession follow thereon. In the present case Lord Elibank, as administrator of his son, and as such having full power, granted the missive of April 1818; and Mr. Murray, at a time when, although minor, he was entitled to act for himself, subscribed the draft of the lease, and his father subscribed the extended deed. These were quite sufficient

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* 7 Shaw and Dunlop, No. 256.

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