No. 96. Feb. 19, 1896. v. Hutton. so defines the estate as to exclude the possibility of acquiring land by prescription in excess of the subjects actually conveyed. In the present case the prescriptive title of the defender begins with the Railway Co. conveyance by Grieve to Marshall. In it the subjects previously conveyed to the North British Railway Company are expressly excepted, and the conveyance to the railway company is referred to by its date, so that the extent of the land conveyed to the railway company is just as clearly defined as if the description had been verbatim inserted in the disposition to Marshall. Now, when the granter of a conveyance says, "I except from this conveyance so many fractional parts of an acre previously conveyed and delineated in a plan annexed to that conveyance," I think that, so far as relates to the bounding line which separates the areas first and second conveyed, he has just as clearly defined the boundary as if he had defined it by reference to march-stones or natural land-marks. I see no distinction between the cases; the principle is one and the same, that you cannot by long possession acquire a subject which your title-deed in terms excludes or declares to be the property of a conterminous proprietor. It follows, in my opinion, that the Lord Ordinary has rightly held that the defender is not in a position to plead prescription in answer to the pursuers' demand for the restoration of their property. The LORD PRESIDENT, LORD ADAM, and LORD KINNEAR concurred. THE COURT adhered. JAMES WATSON, S.S.C.-W. & J. Cook, W.S.-Agents. No. 97. Feb. 21, 1896. TEIND COURT. REV. JOHN METHVEN ROBERTSON, Petitioner.-Craigie. Church-Glebe-Feuing-Expenses which fall to be imposed as permanent burden on glebe-Roads necessary for advantageous feuing-Avenue to manse-Glebe Lands (Scotland) Act, 1866 (29 and 30 Vict. c. 71), secs. 14 and 18.-The Glebe Lands Act, 1866, enacts (sec. 14) that on an application for authority to feu a glebe the Court may authorise the minister to construct such roads as it may find reasonable or expedient with the view of the more advantageous feuing of the glebe; and (sec. 18) that the Court may decern the expenses of constructing such roads a permanent burden on the glebe. Held that the cost of a new avenue to a manse, the construction of which had become desirable for its amenity in consequence of the feuing of the glebe, could not be imposed as a permanent burden on the glebe. ON 8th December 1891 the Rev. John Methven Robertson, minister of the parish of St Ninians, in Stirlingshire, presented a petition for authority to feu the glebe of St Ninians, and craved the Court, inter alia, to decern the amount of the expenses incurred by the petitioner in making and constructing roads, passages, drains, and sewers, in and through the glebe or any part thereof a permanent burden on the glebe.* enacts * The Glebe Lands (Scotland) Act, 1866 (29 and 30 Vict. c. 71) Sec. 14.-"The Court may authorise the minister to make and construct such streets, roads, passages, sewers, or drains in and through the Robertson. Authority to feu having been granted, the petitioner thereafter No. 97. lodged a minute in which he set forth an account of the sums which had been expended by him in the construction of roads and other Feb. 21, 1896. works, including a new gateway and approach to the manse, and craved the Court to inquire into and ascertain the amount of these expenses, and thereafter to decern these a permanent burden on the glebe. A remit was made to a land-valuator, who, inter alia, reported"In order to complete his new road the minister has altered the former approach to his manse, and made it a continuation of his new road or street through the feus. "This new approach is, no doubt, a very great improvement and addition to the amenity of the manse, but it was not absolutely necessary, as the original approach could have remained as it was." The account of the expenses of constructing the roads, &c., having thereafter been remitted to the Teind Clerk, he lodged a report, in which he disallowed the items relating to the gateway and new approach to the manse as not falling within the expenses sanctioned by the Glebe Lands Act. The petitioner objected to the report, and argued that the items disallowed were reasonable charges which had been necessitated by the feuing of the glebe. The gateway and approach were really incidental to, and arose from, the making of a road through the glebe, and they were absolutely essential to the convenient occupation of the manse, and greatly improved its amenity. LORD ADAM.-I think Mr Craigie's objection is not well founded. The first of the claims is that this road having been made for the convenience of the manse, the expense of making it is to form a charge against the future incumbent of the glebe. The claim arises in these circumstances. The glebe having been feued, it became desirable for the amenity of the manse that a new avenue should be made. That may be a matter of great importance for the manse, but it cannot be said that it has been made "with the view of the more advantageous feuing" of the glebe. But the words I have quoted are the words of section 14 of the Glebe Lands Act, which is the only authority that the Court has for allowing the expenses of making roads. Now, the road in question was made, not for the more advantageous feuing of the glebe, but was constructed after the feuing was completed, and solely for the convenience of the manse. The other two sums whose disallowance was objected to follow the fate of the first, for they represent expenses. incurred in connection with the formation of this access to the manse. I therefore think that the Teind Clerk's report disallowing the items I have referred to should be approved. LORD KINNEAR.-I think the only expenses which we are empowered to impose as a permanent burden on the glebe are the expenses required to glebe or any part thereof as the Court on inquiry may find reasonable or expedient, with the view of the more advantageous feuing thereof." Sec. 18.-"The Court shall inquire into and ascertain the sums which shall have been paid as the expenses of making and constructing streets, roads, passages, sewers, or drains in or through the glebe or any part thereof, and shall decern the amount thereof a permanent burden upon the glebe." No. 97. make the feuing which we have authorised profitable to the benefice, and not expenses incurred to improve the amenity of the manse, or required for its convenient occupation. Feb. 21, 1896. LORD M'LAREN, LORD STORMONTH-DARLING, and LORD Low concurred. WM. DUNCAN, S.S.C., Agent. No. 98. Feb. 25, 1896. 1ST DIVISION. WILLIAM BAIN, Pursuer (Reclaimer).-Cook-Constable. Passive Title-Heir-Lease excluding assignees.-A nineteen years' lease of an urban subject was granted to a tenant and his heirs, but excluding assignees and subtenants without the consent of the lessor. On the death of the tenant, his heir took up the lease. Held that the heir did not incur passive representation for the debts of his predecessor, in respect that he took the lease, not as representing his ancestor, but in his own right under the lease. Question as to whether passive representation would be incurred by an heir under a lease excluding subtenants and assignees which was of such duration as to amount in law to an alienation. Campbell v. Gallanach, July 11, 1806, cited in 1 Bell's Com. p. 78, note 5, overruled. Leslie v. Macleod, June 20, 1870, 8 Macph. (H. L.) 99, and Macalister v. Macalister, Feb. 22, 1850, 21 D. 560, commented on. DONALD MACKENZIE senior was, at the date of his death, tenant of Ld. Moncreiff, the Trevelyan Hotel, Leith Street, Edinburgh, under a lease for nineteen years from Whitsunday 1886. The lease bore to be granted to the said Donald Mackenzie and his heirs, but expressly excluding assignees and subtenants without the consent in writing of" the proprietors. Mr Mackenzie, to whom Mr William Bain had been appointed curator bonis in January 1892, died on 30th November 1894. He left a disposition and settlement by which he disponed and assigned to his wife in liferent, and certain other persons in fee, his whole estate, including expressly the unexpired portion of the lease of the hotel. The proprietors did not give their consent to this proposed assignation of the lease, and Mr Mackenzie's son, Donald Mackenzie junior, as heir of his father, took possession of the subjects, and carried on business there. In June 1895 Mr Bain, as curator bonis to the late Mr Mackenzie, raised this action against Donald Mackenzie junior, concluding for payment, inter alia, of £298, 17s. 2d., being the sum alleged by the pursuer to be due and resting owing to him in connection with his intromissions with the curatory estate. The facts before narrated were admitted by the parties. The pursuer averred that the defender took up the lease as heir-atlaw of his father, that the goodwill of the hotel was worth £700, and that the defender was to that extent lucratus. The pursuer pleaded;-(1) The sum of £298, 17s. 2d. first sued for being due and resting owing to the pursuer, in connection with his intromissions as curator bonis to the late Donald Mackenzie senior, or alternatively the same, so far as undischarged, forming proper charges No. 98. against the curatory estate, and the defender, as heir of the said Donald Mackenzie senior, being lucratus to the amount thereof, the Feb. 25, 1896. pursuer is entitled to decree in terms of one or other alternative of Mackenzie. the first conclusion of the summons, with expenses. The defender pleaded;-(1) The action is irrelevant. (3) The lease referred to not being available to the deceased's creditors, the defender incurred no liability to them by taking up the same. On 19th December 1895 the Lord Ordinary (Moncreiff) sustained the third plea in law for the defender, and assoilzied him.* * "OPINION.By the terms of the lease in question assignees and subtenants are excluded, the lease passing on the death of the tenant to his heir. The question, which, strangely enough, has not been definitely settled by decision, is, whether the heir of a tenant who takes up a lease in such circumstances incurs passive representation for his predecessor's debts? If passive representation depended solely upon whether the heir was lucratus by taking up the lease, this case would require to be sent to proof on that point, but it seems to me that it is also essential to the doctrine of passive representation that the property or asset which is taken up by the heir is one which the predecessor's creditors could have adjudged or attached had the heir abandoned it. The terms of a lease, including the destination, depend on contract in which the landlord is one of the parties interested, and therefore apart from statutory provisions conferring power to bequeath a lease, which do not apply to urban subjects, the same rules cannot be applied to the transmission of a lease as apply to succession to other kinds of property. Where assignees and subtenants are excluded, the creditors of the tenant have no power to adjudge the lease. If, on the death of the tenant, his heir abandons the lease, the creditors of the tenant cannot compel the landlord to receive them. The lease is in no way available to them should the landlord not consent. It seems to follow that when in such a case the heir of a tenant takes up the lease, he does so, not as representing his predecessor, but more as an heir of provision, or heir of entail, although his position is not precisely analogous. Bain v. "It appears from a note in 1 Bell's Commentaries (5th edition), p. 82— (p. 78, note 5, 7th edition) that the question was raised in the unreported case of Campbell of Melford v. Gallanach, 11th July 1806. Lord Newton, in the Bill-Chamber, decided in favour of the present pursuer's contention, viz., that the heir incurred a passive title by taking up a lease under which assignees and subtenants were excluded. A petition was presented to the Court, but refused on a point of form, 'the Court regretting that the merits of the question could not be tried.' I gather from Mr Bell's observations that he doubts the soundness of Lord Newton's judgment. He says:'It may be questioned whether the heir, who succeeds to the lease under such a clause, does not take it without incurring any passive title, further than as he can be shewn to have taken up a subject which, as properly belonging to the predecessor, his creditors could attach. The stocking of the farm is indeed the fund of the creditors, so are all arrears due by subtenants; but with regard to future and accruing profits, have the creditors right to them-their debtor's right having expired with his life, like that of an heir of entail?' I find the law stated to the same effect in Bell's Principles, section 1922 (4). "I also find the same doubt expressed in More's Notes to Stair, 364, in which he says, And here, by the way, it may be observed that it has never been decided whether an heir succeeding to such a lease will incur a passive title so as to be liable for his father's debts. The principle upon which liability for such debts may be maintained in the ordinary case does not apply here. The heir takes the subject destined to him by a third No. 98. Bain v. The pursuer reclaimed, and argued;-The original rule of common law was that an heir incurred universal liability, but that had been Feb. 25, 1896. first modified by the introduction of the beneficium inventarii,' and his liability was now ascertained by section 12 of the Conveyancing Act of 1874 (37 and 38 Vict. c. 94). Hence the test was whether the heir was lucratus. The defender here took in the character of heir, and he was lucratus, the business being worth at least £700. It might be that he took as heir of provision-as the Lord Ordinary thought he was none the less liable for his author's debts, so far as he was lucratus by the inheritance. The attachability of the estate by creditors was not the test of passive representation. Benefit to the person succeeding was the essential consideration in the question of liability. The clause excluding assignees was conceived only in the interest of the lessor,3 and could not be founded on by the heir to party, like an heir of entail, and he does not deprive the creditors of his ancestor of any property which they could attach, or make responsible for the payment of their debts'; and then he mentions the case of Campbell v. Gallanach. "Professor Rankine on Leases, p. 151 (1st ed.-p. 159, 2d ed.), says,— 'It seems the better opinion and to result especially from the fact that the heir to a lease takes as heir of provision (as in entails) and takes nothing of which his predecessor's creditors could make use in the event of his renouncing, that he incurs no passive title by entering, and that these creditors cannot attach the profits of the subject let, so far as accruing subsequently to the death of their debtor.' "On the other hand, Mr Hunter, in his work on Landlord and Tenant, vol. i. p. 231, expresses an opinion to the opposite effect. He says, 'Although opinions against the heir's liability have been indicated, the view more consonant to principle appears to be in favour of the ordinary rule of representation. The analogy between an exclusive destination in a lease and succession under an entail so far holds good as to cut off the right of the heir of line and to bar alteration by the lessee. But there are no data for so extending the analogy as to alter the effects of representation as known to the common law. In almost every description of lease, agricultural, mineral, or manufacturing, the predecessor must have invested capital, the profits of which are to be reaped during its currency, and accrue to the successor, who thereby becomes lucratus, which is of the essence of representation. The exemption from liability, in the case of feudal property, is the creature of statute, and is repugnant to the common law, which therefore will not give it an analogical or constructive extension.' "The question undoubtedly is one of difficulty; but I incline to the opinion indicated by Professor Bell, and the other writers to whom I have referred who seem to agree with him, namely, that a lease with such a destination, being a subject which the creditors could not attach, an element is awanting which is essential to the existence of passive representation, and that it is immaterial whether the heir, if he takes up the lease, is lucratus or not. "As it is solely in respect of the lease that the pursuer maintains that the defender has incurred a passive title, and is therefore liable in the sums in question, I am prepared to assoilzie the defender from this part of the action." 1 Ersk. Inst. iii. 8, 50, 68. 2 Sinclair v. Dunbar, July 18, 1845, 7 D. 1085, 17 Scot. Jur. 559; Leslie v. Macleod, Feb. 21, 1868, 6 Macph. 445, 40 Scot. Jur. 229, June 20, 1870, 8 Macph. (H. L.) 99, 42 Scot. Jur. 489. 3 Dobie v. Marquis of Lothian, March 2, 1864, 2 Macph. 788, 36 Scot. Jur. 393. |