Shepherd's Executors v. Mackenzie and Others [1912] ScotLR 105 (16 November 1912)

Shepherd's Executors v. Mackenzie and Others [1912] ScotLR 105 (16 November 1912)

The action by the lessee's executors against the succeeding heir of entail is competent under section 1 of the 1878 Act. The obligation to repay for improvements executed by the tenant devolves on the succeeding heir, but only to the extent that the predecessor could have charged the estate if he had made and paid for the improvements himself. The £6700 limit applies to the total improvement expenditure, but only statutory improvements (as defined by the 1875 Act) are chargeable, and only three-fourths of their value at the date of the predecessor's death is recoverable. Interest runs only from the date of decree. The petition for a charge under section 11 of the 1875 Act was incompetent...

Citation
[1912] ScotLR 105
Parties
Pursuer/petitioner: Shepherd's Executors; Defender/respondent: Sir Robert Smyth Muir Mackenzie of Delvine, Bart.; Defender (for Any Interest): Sir Alexander Mackenzie's Executors
Jurisdiction
Scotland
Judgment Date
16 November 1912
Procedural Posture
Civil (entail/improvement Expenditure) / Inner House, First Division, Court of Session (reclaiming Note/appeal From Lord Ordinary)
Outcome
Appeal allowed in part; interlocutor of Lord Ordinary recalled in so far as it awarded £1542; decree granted for £2559 with interest at 5% from date of decree; petition for charge dismissed as incompetent; expenses in petition awarded to respondent.
Legal Topics
Entail, Improvement Expenditure, Obligation of Heir in Possession, Repayment for Improvements by Lessee, Competency of Action, Statutory Interpretation
Property Law Succession Law Land Law Entail Improvement Expenditure Obligation of Heir in Possession Repayment for Improvements by Lessee Competency of Action +1 more

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Parties

Shepherd's Executors

Pursuer/petitioner

Sir Robert Smyth Muir Mackenzie of Delvine, Bart.

Defender/respondent

Sir Alexander Mackenzie's Executors

Defender (for Any Interest)

Procedural Posture

Civil (entail/improvement Expenditure) / Inner House, First Division, Court of Session (reclaiming Note/appeal From Lord Ordinary)

Legal Issues

  1. 1 Whether the action by the lessee's executors against the succeeding heir of entail is competent under the Entail Amendment (Scotland) Act 1878, section 1.
  2. 2 Whether the limit of £6700 applies only to statutory improvements or must be apportioned between statutory and non-statutory improvements.
  3. 3 At what date the improvements fall to be valued for the purpose of repayment obligation.

Ratio Decidendi

The action by the lessee's executors against the succeeding heir of entail is competent under section 1 of the 1878 Act. The obligation to repay for improvements executed by the tenant devolves on the succeeding heir, but only to the extent that the predecessor could have charged the estate if he had made and paid for the improvements himself. The £6700 limit applies to the total improvement expenditure, but only statutory improvements (as defined by the 1875 Act) are chargeable, and only three-fourths of their value at the date of the predecessor's death is recoverable. Interest runs only from the date of decree. The petition for a charge under section 11 of the 1875 Act was incompetent...

Court Disposition

Appeal allowed in part; interlocutor of Lord Ordinary recalled in so far as it awarded £1542; decree granted for £2559 with interest at 5% from date of decree; petition for charge dismissed as incompetent; expenses in petition awarded to respondent.

Orders

  • Defender Sir Robert Smyth Muir Mackenzie to pay £2559 to the pursuers with interest at 5% per annum from date of decree until payment.
  • Petition for authority to charge the estate dismissed as incompetent.