Scottish Court of Session Decisions

In 1785, the trustees of Fraser of Lovat granted a lease of the farm of Inchberry to Major James Fraser, for nineteen years, the right to which was afterwards acquired by the late William Fraser. In 1802, a new lease was entered into between the honourable Archibald Fraser of Lovat, and William Fraser, who thereby renounced his right under the former tack, which had not yet run out. The lease of 1802 contained the following stipulation;—“And, whereas, by the foresaid renunciation, the lease granted by the said trustees on the estate of Lovat, is considered as having expired at the term of Whitsunday last, whereby the said William Fraser is entitled to meliorations in terms thereof to the extent of three years' rent of the lands thereby let, the said yearly rent being £18, 1s. 2d. of money rent, and forty bolls of barley of victual rent, and is entitled to the further sum of £122, 19s. 1d. sterling, being the appreciated value of biggings and dykes upon the said farm, as allowed in a minute of tack granted by the commissioners of annexed estates in favour of the said James Fraser of Belladrum, and allowed also by the lease now renounced, to which sum, as also the three years' rent for meliorations, the said William Fraser acquired right.”

The lease farther provided that the whole buildings, dykes, &c. upon the farm should be forthwith appraised by a person to be named by the parties, and schedules of the appreciations made up; and also that the tenant should defer all demands on the landlord on account of the ameliorations above-mentioned, until the expiry of the tack. William Fraser bound himself to maintain the buildings and enclosures, and to leave them, at the end of the tack, in equally good condition as at the commencement; and it was declared that, at the close of the tack, he should only be entitled to receive the above-mentioned sum allowed for meliorations, “provided always that the said houses, biggings, dykes, and enclosures, shall be found, in the manner above expressed (that is, by appraisement), to be worth that sum, and also provided they shall be found, at the expiration of this tack, to be in equally good condition and repair, and worth as much as they shall be found and stated to be in the said schedules and estimates made at the commencement thereof.”

No regular valuation of the buildings upon the farm, in 1802, was made, as provided for by the lease. William Fraser possessed under it till its expiry, in 1821. After his death, the respondents, his executor and residuary legatee, raised an action, before the Sheriff of Inverness, against the advocator, Fraser of Abertarff, as representing Archibald Fraser of Lovat, in which, founding upon the clauses of the lease above referred to, they concluded for payment of £297, as the amount of meliorations to which, in terms of the lease, William Fraser was entitled at its expiry.

The Sheriff having decided in favour of the pursuers, the defender brought an advocation, in which he maintained, inter alia, that the melioration clause in the lease merely recited the stipulations of a former lease, thereby renounced, and fixed the maximum to which the tenant might be entitled, upon proving, by future valuations, that meliorations to the amount specified had been made, and that the claim of the pursuers was barred by the failure of their constituent to procure appreciations of the subjects in question, at the commencement of the lease.

The pursuers replied—

That the natural construction of the melioration clause supported his conclusions, and that the claim for meliorations to the extent stipulated for in the lease was not contingent on the valuations in question having been made.

The pursuers further averred, in point of fact, that the houses and buildings on the farm were of equal, if not greater value, at the termination than at the commencement of the tack, and this averment was not explicitly denied on the record.

The Lord Ordinary pronounced the following interlocutor, adding the note subjoined: ^*—“Having resumed consideration of the debate, with the

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^* “It seems quite impossible to adopt the defender's construction of the clause relied on in the lease 1802, viz. that it merely recites the stipulations of a former lease, thereby renounced, and fixes the maximum, to which the tenant might be entitled, upon proving by future appreciations that meliorations to that amount had been made. The whole structure and conception of the clause seem to be exclusive of such a construction, inasmuch as the right to the £122, 19s. 1d. there mentioned, is put upon the very same footing with the right of the three years' rents; while, with respect to the £122, 19s. 1d., it is expressly stated to be ‘the appreciated value of biggings and dykes, allowed in a minute by the commissioners of annexed estates, and also by the lease now renounced,’ &c. It is perfectly plain, therefore, that, as to this sum, there had been a regular appreciation at a former period, and that the amount had been finally liquidated to the satisfaction of all parties concerned, and though no mention is made of any such appreciation having been formally made, as to the three years' rents, it is impossible to read the clause without seeing that it also is recognised as confessedly due, and in all respects in the same situation with the sum already specified. The case, therefore, has really no resemblance to that of M'Ra, 7th June, 1828 (6 Shaw, 935), referred to by the defender, in which there was no liquidation of the claim, by acknowledgment or otherwise, but a mere offer to prove its amount, at the distance of twenty years.

“The defender rested a good deal on the stipulation that a new appreciation should be made as soon after the lease was executed as possible—and on the apparent neglect of this stipulation. It is to be regretted certainly that it was neglected, though the neglect is not to be imputed to one of the contracting parties more than to the other; but the Lord Ordinary is not only satisfied that its insertion in the lease gives no countenance to the defender's construction of the leading clause already noticed, but that, according to the defender's own admissions on the record, its neglect is truly of no consequence, or at least can be of no prejudice to him. The Lord Ordinary conceives its object to have been this:—The appreciation of the 122, 19s. 1d, had been made many years before, and the buildings then valued might have fallen off or increased in value. Then the subsequent meliorations, though admitted to have been at least equal to the three years' rent acknowledged to be due, and to which the tenant's claim was limited, might have been worth a great deal more. But it was the bargain of the parties in 1802, that these liquidated sums should not he paid in 1821, unless it was then shown, not only that meliorations to that amount were still extant on the farm, but that any additional meliorations that might have been made before 1802, had also been kept up to their value at that time; and it was with a view to fix the actual, and possibly the excrescent value at that time, that a regular appreciation, as of that date, is provided for. If it showed a greater value than that previously liquidated, the landlord was still to be excused from paying, unless the whole of that value had been kept up till the end of the lease, while in no case could he be made to pay more than the specified amount. If the defender, therefore, had averred, in this case, that in 1802 the actual value of the meliorations was much greater than the specified sums now sued for, but had been afterwards greatly reduced, he might then have resisted the pursuer's claim, even though he admitted that in 1821 there was value still left to the amount now claimed. But, instead of this, he has distinctly averred (defender's Statement of Facts, art. 4), that, at the date of the lease in 1802, the buildings and fences on the farm ‘were not worth the sum claimed now by the pursuer,’ so that upon this view of the object of the appreciation it stands admitted that he can suffer no prejudice.

“He contends, however, no doubt, that on this assumption of the subjects being of less value in 1802, he ought not now to pay the sums sued for, even though they might have been worth these sums in 1821, because the additional value must then have been added during the lease, for which he cannot be made liable under the terms of this summons. Substantially it appears to the Lord Ordinary that the defender has no fair interest to maintain this objection. Since, by the lease 1802, he is separately bound to pay for meliorations made during its currency, and the pursuer offered judicially to discharge all claims on this account, on receiving payment of the sums now sued for. But the defender having rejected this offer, and refused to admit (though he does not directly deny) that the meliorations extant in 1821 (whensoever executed) were truly worth more than the sums now claimed, the Lord Ordinary has remitted to allow a proof of the fact, and also to allow a supplementary action for the later meliorations, in case, after proving the requisite value to have been extant in 1821, it should not be clearly made out that it had all been created prior to 1802. In this way, and in this way only, full and final justice will be done to the parties.

“No expenses have been found due to either party, because, while the Lord Ordinary adopts generally the pursuer's construction of the lease, he cannot possibly approve of the sheriff deciding without proof.”