Scottish Court of Session Decisions

This action was raised by Andrew Rollo Bowman Ballantine, Esquire, of Ashgrove and Castlehill, in the county of Ayr, with the consent and concurrence of Edward Atkins, Southampton, against David Stevenson, farmer, for the purpose of having the latter ordained to remove from the farm of Outer and Innerwood, and further, in the event of his continuing in possession, to pay damages. The pursuer was heir of entail in possession of the estate of Ashgrove. Although he succeeded to that estate in 1859, on the death of his predecessor Miss Bowman, he did not come into the actual possession of the estate till 1879, in respect that in anticipation of his succession he sold his life interest to Mr Edward Atkins, of Southampton, who remained in possession until a year or two ago, when he re-sold the interest to the pursuer. During his possession Mr Atkins granted leases of the farms and exercised all the rights of owner. The said farm of Outer and Inner wood was let for a term of nineteen years to William Stevenson, the defender's brother, but from about 1867 the latter was subtenant of the farm under his brother by an arrangement to that effect. In 1876 this lease expired, and negotiations took place for a renewal of it. Mr Atkins at no time took any personal part in the management of the estate but left the whole administration in the hands of Mr Bradby, a London solicitor, and the firm of Bradby & Robins, of which he was for some time a partner. These gentlemen employed Mr Hugh James Rollo, W.S., of Edinburgh, as their local agent and factor, and entrusted him to a large extent with the details of the management. It appeared that in 1875, while William Stevenson had a year and a-half of his lease still to run, the roof of the farmhouse had fallen in from natural decay. Mr Rollo obtained a report on the subject from Mr Stewart, factor to the Earl of Eglinton, suggesting that the landlord should renew the roof and raise the walls of the farmhouse and charge the tenant interest on the outlay. This report was sent by Mr Rollo to Messrs Bradby & Robins on 19th June 1875, but no answer having been returned, Mr Rollo, on 4th January 1876, wrote to them as follows:—“must again refer to the repair of the roof of the barn on the farm-steading occupied by Stevenson. I am rather at a loss what to advise. Mr Atkins' tenure of the estate depends upon the life of Mr Bowman Ballantine. Then there is only one year of the lease to run, so that it is not worth Stevenson's while himself to be at much outlay, even although by not doing so he puts himself to inconvenience. The farm will certainly not let without the houses being repaired, and when a new lease is entered into there is every reason to suppose that there will be a rise of rent. The Stevensons are most respectable men, and I think a good deal of the younger brother who occupies this farm. How would it do to enter into an agreement with the Stevensons that Mr Atkins will repair the barn, the Stevensons paying six or seven per cent. till the present lease runs out, and then, if Mr Atkins is still in possession, that they will retake the farm on a new lease, and let us have the farm revalued to see what the increase of rent would be? It is quite evident that when the lease does run out the steading must be repaired.” On 5th February Messrs Bradby & Robins replied—“Please do what is right according to the respective obligations of the landlord and tenant, and not expending more than is absolutely necessary.” On 5th June Mr Rollo wrote—“As I sometime since wrote to you, Stevenson's farm of Outerwood runs out this Martinmas, and I now enclose report by Mr Stewart as to what he proposed should be done in the event of a new lease being entered into. The rise of rent is considerable, but then there is the required outlay. Whitehirst also runs out this November, and, as you will observe, Mr Stewart proposes the two farms should be joined. The change of steading, however, will be a very serious matter as to expense. Considering the tenure upon which the estate is held, depending upon Mr Ballantine's life, the repairing of steadings is a matter

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attended with difficulty, and requires some consideration.” About this time some difficulty was started as to the power of Mr Atkins to grant leases at all. Mr Rollo, however, by the instructions of Messrs Bradby & Robins, consulted Mr Kinnear, advocate (now Dean of the Faculty of Advocates), on the subject, whose decision was in favour of Mr Atkins' power. This opinion was communicated to Bradby & Robins by Mr Rollo in a letter of 7th September, in which he says—“I can see no reason why we should not enter into a treaty with Mr Stevenson for a new lease of the subjects.” On the 9th of September Mr Bradby replied—“We beg to acknowledge receipt of your letter of the 7th inst., enclosing a copy of statement laid before counsel and of his opinion thereon, and which seems satisfactory.” On 28th August 1878 Mr Rollo had the lease revised by Mr Stewart, and signed by David Stevenson and by William Stevenson, as his brother's cautioner. This alteration was made at the request of both brothers when they saw Mr Rollo in November or December 1876; he then wrote to Messrs Bradby &Robins—“I now enclose for the signature of Mr Atkins the lease to Mr Stevenson of the farm of The Wood.” In reply, on October 26, 1877, they wrote—“Our client thinks he ought not to sign any new lease pending the litigation which has been commenced against him.” This litigation was an action raised by Mr Bowman Ballantine, the pursuer in this case, to set aside the transaction under which Mr Atkins acquired the estate, and was subsequently settled in London. On 11th December Mr Rollo wrote—“I had a conversation with counsel as to the lease with Stevenson. As you are aware, Mr Kinnear gave it as his opinion that Mr Atkins had the right to grant the lease. It is, of course, impossible to say how long the present litigation may go on, and in Scotland we have no such thing as farm tenants by the year. I do not see, therefore, what other arrangement there can be than to conclude the lease, resting upon Mr Kinnear's opinion, who is now the counsel for our opponents. I will be glad to hear from you.” To this they replied on December 31—“With regard to Stevenson's lease we are instructed to say that our client does not think of renewing it. We conclude that you have not agreed to any renewal.” On January 9, 1878, they wrote—“Mr Atkins intended to have the farm revalued before granting any new lease, and will not grant a new lease on the old terms.” On the 26th February 1878 they wrote—“Our client trusts he is not committed to a renewal of Mr Stevenson's lease.” On 9th March 1878 they wrote—“We shall be glad to hear whether the arrangement with Stevenson is obligatory on our client, as he is not desirous of granting a new lease on the present terms. No valuation has taken place for 50 years. It is not therefore simply a question of the right or power of our client to grant the new lease, but he does not wish to do so.” On May 16, 1878, they wrote—“Will you be so good as to inform us by return of post what is Mr Stevenson's position. We conclude he is now only a tenant at will, or at most a yearly tenant.” Mr Rollo replied on May 17, 1878—“Stevenson having signed the lease and continued in possession, besides making a payment to account of rent, must be considered as the tenant for the duration of the lease.” On the 10th June 1878 Mr Bradby wrote—“Mr Stevenson should without delay be made to clearly understand that our client has never agreed to grant him a new lease.” Mr Rollo refused to stand to these instructions, and after some further correspondence upon the matter, in which Mr Rollo explained the position clearly, the tenants were informed that there was an objection for the present on the landlord's part to sign the lease.

On 20th of September 1880 the concurring pursuer Mr Atkins, with consent of the other pursuer, raised an action of removing in the Sheriff Court of Ayr against William Stevenson, concluding for his removal from the farm. The latter entered appearance and lodged defences denying that he was occupying the same, or had any right to continue in possession as tenant. The defender David Stevenson claimed to possess the farm under the arrangement made with his brother William, and under the lease which he had signed, but which the pursuers repudiated, and it was to have him removed that the present action was raised.

The pursuers pleaded—“(1) The pursuer, the said Andrew Fitzjames Cunningham Rollo Bowman Ballantine, being proprietor of the lands and farms libelled, is entitled to obtain decree of declarator as concluded for, and to have the defender David Stevenson instantly removed and ejected from the said lands and farms as a vitious or precarious possessor. (2) In the circumstances above set forth, the defender, who has no legal possession, is not only not entitled to retain the title or occupancy or possession of the said lands and farms against the will of the pursuer, but is liable in all loss and damage arising to the pursuer thereby, and the pursuer is entitled to decree against him as concluded for in that respect, with expenses.”

In defence the defender averred that in 1876 Mr Rollo had consented to take him as successor to his brother William in the tenancy of the farm under a nineteen years' lease, and that Mr Atkins had consented to this step. Thereafter the lease in these terms was sent signed by him and his brother as his cautioner to Mr Rollo for Mr Atkins' signature. In reliance on the lease he entered into possession of the farm and took over the whole crops and implements from his brother at a valuation at Martinmas 1876. He had regularly paid the rent stipulated in the lease, which had been accounted for by Mr Rollo to Mr Atkins. He further averred that on the lease being returned to Mr Rollo he took it for granted that it had been forthwith signed by Mr Atkins, and he only learned in August 1878 that Mr Atkins' signature had not been adhibited.

He pleaded that—“(1) Being tenant of the lands in question under a nineteen years' lease, to run from Martinmas 1876, he should be assoilzied. (2) Separatim, an agreement for a nineteen years' lease in terms of the lease signed by the defender had been constituted, and was now binding under the writings and actings aforesaid.”

In the proof which was taken before the Lord Ordinary it appeared that Mr Rollo was aware that the defender had entered into an agreement

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with his brother as to being his brother's subtenant in the farm. It also appeared that Mr Bradby had not thought it proper at once to cause intimation to be made to the Stevensons that the lease was not to be carried out, but had thought that the best plan was to leave the lease in abeyance, because it might in the end have been arranged that it should be carried out.

The Lord Ordinary ( Curriehill) found (1) that the defender David Stevenson was in possession and occupation of the farm as a yearly tenant; and (2) that he was bound to remove from the said farm and premises as follows, viz., from the arable lands at the said term of Martinmas 1881, from the yards at Candlemas 1882, and from the houses, grass, and other pertinents at 1st May 1882. His Lordship appended a note to his interlocutor, the import of which was as follows:—The question between the parties depended mainly upon the extent of Mr Rollo's authority. In the first place, it was certain he had no direct authority from Mr Atkins to enter into leases with tenants, but the correspondence which passed between the parties revealed that he had such authority from Messrs Bradby & Robins, who had full power to bind Mr Atkins in the matter. It appeared, however, that Mr Rollo had failed to communicate to Messrs Bradby & Robins that the new lessee was to be David Stevenson. They imagined that the lease was to be executed in favour of William Stevenson, the former lessee, and the delectus personce, which was the right of a landlord, demanded that this should have been made clear to them if the lease with David Stevenson was to stand. His Lordship then added—“Now, as to the alleged facts upon which the defender founds as amounting to rei interventus, viz., possession, payment of the increased rent, and execution of the repairs, the proof negatives all of these allegations. In the first place, the possession of the defender is not to be attributed to the lease now in question; it had begun long before that lease was ever thought of; he had for years previously been his brother's sub-tenant, and he just continued after Martinmas 1876 to occupy and labour the farm as before. In the second place, in point of fact he did not pay the increased rent, at all events until sometime after he had been informed that the new lease had been repudiated by Mr Atkins. Indeed, he seems to have been generally in arrear. And in the third place, he did not until 1880, shortly before this action was raised, and long after he knew that the lease was repudiated, execute any repairs upon the steading. It is thus impossible for the defender to maintain either that the lease was adopted or homologated by Mr Atkins or his solicitors Bradby & Robins, or that anything had been done by him (the defender) on the faith of the lease which he would not have done if the lease had never been even proposed. In short, there has been no rei interventus.

“From what has been said, it follows that, in my opinion, the lease cannot be founded on by the defender as a title to possess the farm as tenant for nineteen years from Martinmas 1876. But while that is my opinion, I think there is enough in the proof to show that de facto the defender has been recognised both by Mr Atkins and by the pursuer, for some time before this action was raised, as a yearly tenant of the farm. He was allowed by Mr Atkins to remain in possession and occupation after it was known that he and not William was de facto occupying the farm, and a certain amount of rent was accepted from him each year. And by the pursuer's own agents he was entered in the valuation-roll for 1879–80 as tenant of the farm without a lease at the rent of £250. I do not know whether or in what character he was entered in the roll for 1880–81, but in point of fact he was allowed to begin a new year's tenancy at Martinmas 1880 without objection, for this action was not raised against him till 27th December 1880. It is impossible, therefore, for me to pronounce decree of declarator in the terms sought by the pursuer, viz., that the defender has no right or title to occupy or possess the farm. But I propose to find that the defender is in possession as a yearly tenant until Martinmas 1881 as to the arable lands, and until Candlemas 1882 as to the yards, and until 1st May 1882 as to the houses, grass, &c., and that he is bound to remove from the several premises at these respective dates. As to the rent, I think it would be unreasonable to hold the defender bound to pay the increased rent which he was willing to pay only in respect of a nineteen years' lease, and I therefore think the rent of £250 (the old rent) is a fair and reasonable rent to fix, the more so as it is the rent entered by the pursuer himself, or by his instructions, in the valuation-roll. In this view of the case, of course, the pursuer's claim of damages for illegal occupation falls to the ground, the defender, on the other hand, being bound to pay the rent. It was very fairly stated at the debate by the counsel for the pursuer that the pursuer would give the defender credit for any outlay which he would establish as having been made in substantial repairs and meliorations.”

The defender having reclaimed, be argued—(1) Rollo had authority to grant the lease, and whether signed or not it was a valid and concluded lease; (2) the pursuers were barred by acquiescence from repudiating the lease; (3) possession and rei interventus completed the lease.

Authorities—Story on Agency, 256; Macpherson v. Clark, May 12, 1875, F.C. 352; Dowager Countess of Moray v. Stewart and Others, July 23, 1722, M. 4292, and March 24, 1773, 2 Paton's App.; Ersk. Inst. ii. 6, 36; Graham v. Gowans, June 20, 1872, Hume's Rep. 784; Forbes v. Wilson, Feb. 22, 1873, 11 Macph. 454.