Duke of Bedford v. Earl of Galloway's Executor [1904] ScotLR 41_804 (08 July 1904)

Duke of Bedford v. Earl of Galloway's Executor [1904] ScotLR 41_804 (08 July 1904)

The clause of warrandice in the lease, by its express terms, binds only the granter and his successors in the entailed estate, not his executor or general representatives. The intention of the parties was to impose obligations on the Earl during his life and on the heirs of entail after his death, not on his personal representatives. The clause is ineffectual to bind the executor, and the defender is assoilzied.

Citation
[1904] ScotLR 41_804
Parties
Pursuer: Duke of Bedford and others; Defender: Colonel the Hon. Walter John Stewart, as trustee and executor of the deceased Right Hon. Alan Plantagenet, Earl of Galloway, and as an individual
Jurisdiction
Scotland
Judgment Date
08 July 1904
Procedural Posture
Civil / Appeal (reclaiming Motion) From Lord Ordinary's Interlocutor
Outcome
defender assoilzied (absolved); interlocutor adhered to
Legal Topics
Entail, Lease, Warrandice, Executor Liability, Reduction of Lease
Property Law Succession Law Contract Law Entail Lease Warrandice Executor Liability Reduction of Lease

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Parties

Duke of Bedford and others

Pursuer

Colonel the Hon. Walter John Stewart, as trustee and executor of the deceased Right Hon. Alan Plantagenet, Earl of Galloway, and as an individual

Defender

Procedural Posture

Civil / Appeal (reclaiming Motion) From Lord Ordinary's Interlocutor

Legal Issues

  1. 1 Whether the clause of warrandice in the lease binds the executor of the granter of the lease to compensate lessees for outlays and relieve them from liability for future rents after reduction of the lease by a succeeding heir of entail
  2. 2 Proper construction of the clause of warrandice in the context of an entailed estate

Ratio Decidendi

The clause of warrandice in the lease, by its express terms, binds only the granter and his successors in the entailed estate, not his executor or general representatives. The intention of the parties was to impose obligations on the Earl during his life and on the heirs of entail after his death, not on his personal representatives. The clause is ineffectual to bind the executor, and the defender is assoilzied.

Court Disposition

defender assoilzied (absolved); interlocutor adhered to

Orders

  • Defender assoilzied from the conclusions of the action
  • Defender entitled to expenses