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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Lennox v. Reid [1893] ScotLR 31_80 (14 November 1893) URL: http://www.bailii.org/scot/cases/ScotCS/1893/31SLR0080.html Cite as: [1893] SLR 31_80, [1893] ScotLR 31_80 |
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Page: 80↓
[Sheriff of Stirlingshire.
The Agricultural Holdings (Scotland) Act 1883 by sec. 27 provides that “when six months' rent of the holding is due and unpaid it shall be lawful for the landlord to raise an action of removing before the Sheriffa gainst the tenant.”
Held that a proprietor of lands, who had succeeded in June 1892, was entitled to raise such an action in respect of the six months' rent payable at Martinmas 1892 not having been paid, his right to do so not being affected by the fact that he might have to account for the amount of said half-year's rent to the executor of the last proprietor.
Mrs Peareth Lennox of Woodhead and Antermony succeeded to these lands as heir of entail to the Hon. Mrs Kincaid Lennox, who died June 26, 1892. In April 1893 she brought an action in the Sheriff Court at Stirling against Andrew Reid, farmer, Inchbreak, Lennoxtown, for the sum of £80, being the first half-year's rent of his farm for crop and year 1892, due at Martinmas 1892, but unpaid, and to have him ordained to remove at Whitsunday 1893 under the 27th section of the Agricultural Holdings (Scotland) Act 1883, which provides that “when six months' rent of the holding is due and unpaid it shall be lawful for the landlord to raise an action of removing before the Sheriff against the tenant.” …
The defender averred that he was not due six months' rent, because upon his entry he had paid £40 in advance as security, which still remained to his credit.
To this averment the pursuer answered that the £40 was not an advance in security, but payment for an early entry.
The defender pleaded—“(1) No title to sue.”
Upon 13th April 1893 the Sheriff-Substitute ( Buntine) repelled the 1st plea-in-law for the defender, and allowed a proof.
“ Note.—The pursuer is entailed proprietor of the farm of which the defender is tenant. She succeeded in June 1892.
She avers that six months'rent of the holding was ‘due and unpaid’ at Martinmas last, and founds on the provisions of section 27 of the Agricultural Holdings Act 1883.
The defender pleads ‘no title to sue,’ in respect that even if the whole half-year's rent was due and unpaid (which is denied) it was not all due to the pursuer, but only the part accruing after her succession to the estate in June last, the rest being due to the personal representatives of the deceased proprietor.
The Sheriff-Substitute is of opinion that it is of no consequence to whom the half-year's rent is due if the tenant is in default.
Undoubtedy the pursuer is the ‘landlord’ in the sense of the Act, viz., the person for the time being entitled to receive the rents, and if six months' rent is due and unpaid, then she is entitled to have the tenant removed.
The defender, however, does not admit that the whole half-year's rent is unpaid, and produces certain receipts. It is tolerably plain from these and from defender's letter, No. 9/3 of process, that the rent is truly unpaid; but in the face of defender's denial a proof on this point has been allowed.”
Upon 1st June 1893, after a proof, interim Sheriff-Substitute Mitchell found that half-a-year's rent was due by the defender, gave decree for the same, and ordained the defender to remove.
To this interlocutor Sheriff Lees adhered.
The defender appealed to the First Division of the Court of Session, and argued—(1) Six months' rent was not in fact unpaid. (2) If it was, it was not due to the pursuer. Although conventionally exigible at Martinmas 1892 it was legally due at Whitsunday 1892, and therefore wholly due to the executor of the late proprietor. In any case only a part of it was due to the present pursuer, and that only under the Apportionment Act of 1870. She had no right to sue an action of removing.
Argued for respondent—(1) Six months' rent was unpaid. (2) The Apportionment Act regulated the rights of heir and executor inter se; but with these the defender had nothing to do. He was liable to be sued in an action of removing by the present proprietor in the lands, whose right was unaffected by the Apportionment Act.
At advising—
Page: 81↓
The first of these two pleas is founded on the hypothesis that the rent exigible at Martinmas 1892 belongs to the executor of the late proprietor. The pursuer's averment is that the rent for crop and year 1892 was payable in equal portions at Martinmas 1892 and Whitsunday 1893, and this is not disputed. But the defender maintains that the legal terms were Whitsunday and Martinmas 1892, and therefore that as the portion conventionally exigible at Martinmas was legally payable at the previous Whitsunday, it vested in the late proprietor, who survived till the 26th of June 1892, and is now payable to her executor, and not to the pursuer as heir of entail in possession. I express no opinion as to the respective rights of heir and executor. These may depend on the practice of the estate or solely on the application of general rules to the special conditions of the lease. However that may be, the executor is no party to the process, and we cannot determine the measure of his right in his absence. But assuming for the purpose of the argument that in the division of rents between heir and executor the whole amount payable at the Martinmas term after the late proprietor's death, must fall to the latter, the pursuer has nevertheless in my opinion a perfectly good title to enforce the obligations of the lease, and the tenant has no concern with any question of division or apportionment between her and her predecessor. The supposed claim does not arise under the Apportionment Act, but it is a claim of precisely the same nature as that which the Apportionment Act gives to the executor for the rents accruing between Whitsunday and the 26th of June. It is a claim available against the heir in possession to account for the rents which she may levy. But the executor is not put in possession of the estate either by the Act or by the common law, and the proprietor in possession for the time being has an undoubted title to levy the rents. His right to do so is expressly reserved by the statute, in so far as regards apportioned rents. But in this respect the Act only follows the rule of common Law. The general rule is that the contract of lease is transmissible to the respective successors of the contracting parties, and that, to use the words of the first Lord Curriehill, “when such transmission takes place its obligations are prestable, not by or to the original parties or their legal representatives as such, but by and to the parties who shall be in the respective positions of lessor and lessee, or landlord and tenant, at the dates when these obligations become prestable.” As between landlord and tenant, it is of no consequence whether the conventional terms correspond with the legal terms or not. It is the conventional terms, or, in other words, the terms of their contract which regulate their rights and liabilities; and if a tenant is bound by his contract to pay rent at a certain term, the obligation is prestable at that term to the landlord then in possession irrespective of the obligation of the latter to the representatives of the predecessor. If the defender had been interpelled by the executor from making payment to the pursuer the question might have been different. But it is not suggested that the executor has made any claim against him, and if such claim were to be made there can be no question that the landlord's discharge would give the tenant a sufficient answer.
The second question is one of fact. It is not disputed that a sum of £40 was paid by the defender at Whitsunday 1889. The question is, whether this was paid in advance or security of future rent, or whether it was paid for earlier entry to the houses and grass than the tenant was entitled to under the lease? The evidence has been very carefully examined by the Sheriff-Substitute, and I agree with the view he has taken of it. The most material consideration to my mind is that the subsequent conduct of the parties is consistent with the factor's account of their verbal agreement, and altogether inconsistent with the account of the defender. If the payment in question was made in advance or in security of future rents, it is not intelligible that the tenant should have consented to pay the full amount exigible at the next term, and continued to pay in full, term by term, until Martinmas 1892 without ever suggesting that he had already paid a sum to account.
On the second point I agree with Lord Kinnear as to the necessary inference which must be drawn from the mode of payment which has regulated the relation of landlord and tenant throughout the lease.
The
Page: 82↓
The Court adhered.
Counsel for Pursuer and Respondent— Dickson— Fleming. Agents— Dundas & Wilson, C.S.
Counsel for Defender and Appellant—Ure— Crabb Watt. Agents— Dove & Lockhart, S.S.C.