Gillespie v. Riddell [1908] ScotLR 514 (20 February 1908)

Gillespie v. Riddell [1908] ScotLR 514 (20 February 1908)

An obligation in a lease by an heir of entail in possession to take over sheep stock at the expiry of the tenancy is a personal contract and does not bind a succeeding heir of entail in possession, as such obligations do not create a real right in the land nor are they authorised by the entail or statute. The only liabilities that transmit are those made real or expressly permitted by the entail; otherwise, the remedy is against the personal representatives of the deceased heir, not the succeeding heir of entail.

Citation
[1908] ScotLR 514
Parties
Pursuer (tenant): Charles Gordon Gillespie; Defender (heiress of Entail in Possession): Miss Louisa Margaretta Riddell
Jurisdiction
Scotland
Judgment Date
20 February 1908
Procedural Posture
Declarator / Inner House, First Division, on Reclaiming Motion (appeal) From Lord Ordinary
Outcome
Action dismissed against the defender; defender assoilzied (absolved) from conclusions of the action.
Legal Topics
Entail, Leases, Obligations of Heirs of Entail, Transmissibility of Lease Obligations, Sheep Stock on Expiry of Lease
Property Law Succession Law Landlord and Tenant Entail Leases Obligations of Heirs of Entail Transmissibility of Lease Obligations Sheep Stock on Expiry of Lease

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Parties

Charles Gordon Gillespie

Pursuer (tenant)

Miss Louisa Margaretta Riddell

Defender (heiress of Entail in Possession)

Procedural Posture

Declarator / Inner House, First Division, on Reclaiming Motion (appeal) From Lord Ordinary

Legal Issues

  1. 1 Whether an obligation in a lease by an heir of entail in possession to take over sheep stock at the expiry of the tenancy is binding on a succeeding heir of entail in possession.
  2. 2 Whether such an obligation can be enforced against the estate or special legatees of the deceased heir of entail.

Ratio Decidendi

An obligation in a lease by an heir of entail in possession to take over sheep stock at the expiry of the tenancy is a personal contract and does not bind a succeeding heir of entail in possession, as such obligations do not create a real right in the land nor are they authorised by the entail or statute. The only liabilities that transmit are those made real or expressly permitted by the entail; otherwise, the remedy is against the personal representatives of the deceased heir, not the succeeding heir of entail.

Court Disposition

Action dismissed against the defender; defender assoilzied (absolved) from conclusions of the action.

Orders

  • Dismissal of the action against the defender as heiress of entail in possession.
  • No declarator granted against the estate or special legatee in absence of proper parties (executors, general representatives).