Scottish Court of Session Decisions

Subject_1 TERM LEGAL AND CONVENTIONAL.

The Trustees of Sir Francis Eliott
v.
Sir William Eliott

Date: 28 November 1792
Case No. No. 58.

In grassfarms, when the landlord survives Whitsunday, his executor draws a half of the rent payable at Martinmas and Whitsunday there after.

Click here to view a pdf copy of this documet : PDF Copy

The late Sir Francis Eliott of Stobs disponed his whole personal estate to certain trustees, whom he also named his executors.

He died on the 20th June, 1791, and was succeeded by Sir William Eliott, his son and heir of entail, in the estate of Stobs, which consists of grass farms. The tenants of that estate enter into possession at Whitsunday, and are taken bound by their tacks to pay a half year's rent at the Martinmas after their entry, “for the half year immediately preceding,” and another half year's rent at the following Whitsunday, “for the half year preceding that term.”

The trustees claimed the half year's rents of the different farms, payable at Martinmas 1791, as part of the executry; and

Pleaded: In order to regulate the distribution of the rents in the hands of tenants, between the heir and executor of the landlord, the fiar and executor of the liferenter, practice has established Whitsunday and Martinmas as two legal terms, from which, whatever may be the conventional terms of payment, the rents payable for the crop of the current year, at the death of the predecessor, shall be held to have been in ejus bonis, and to transmit to his executors. If he survives Whitsunday, his executors get a half, if Martinmas, the whole, of the rent payable for that crop.—Erskine, Book 2. Tit. 9. § 64. This rule, found to be a very convenient one, was probably introduced from its having been the old custom, in this country, for tenants to pay their rent, the one half at the Whitsunday before, the other at the Martinmas after, the corn-crop was reaped. It took place at first, probably, only in the case of corn farms; it is now equally applicable to grass ones. In the following cases, February, 1727, Sir William Johnston against Marquis of Annandale, No. 51. p. 15913. 4th June, 1741, Pringle against Pringle, No. 46. p. 15907. and 3d July, 1760, Kerr of Hoselaw against Turnbull, (Not reported), where the terms of entry, and conventional terms of payment, were the same as in the present case, the Court found, that the heritor, by surviving Martinmas, transmitted to his executor the rent payable by convention at the Whit-sunday following; and although, in the case 11th June, 1745, Campbell against Campbell, No. 48. p. 15908. the Court allowed a proof, before answer, to a certain effect, the point now in dispute was taken for granted.

Answered: The portion of rent which goes to the executor is the same that was actually due to the deceased himself; what was not due to him, goes to his heir.

Each term's rent is payable for the corresponding period of actual possession, though, in consequence of positive agreement, it may not then be exigible. In corn farms, as the tenant enters to the arable lands at Martinmas, so at the following Whitsunday he owes a half year's rent, for his half year's possession; and this the heritor, if he survives that term, will transmit to his executor. By the same rule, if the tenant only enters to a grass farm at Whitsunday, no rent can be due till the following Martinmas; and the heritor dying before that period, can transmit no part of it to his executors.

In grass farms, the legal and conventional terms of payment are generally the same. The tenant enters into possession at Whitsunday, and pays one half of the rent at Martinmas, the first, the other at Whitsunday, the second legal term after his entry. Hence, as Sir Francis died before Martinmas, when the first half became due, as well as exigible, he cannot transmit it to his executors.

The point has not yet been settled by decisions. The case of Kerr, which is the last, was taken out of Court by compromise before a final judgment; and in that of Campbell, no decision of the point of law was given, but only a proof before answer allowed. The notion, too, which appears to have been weighed in the decision of the two older cases, viz. that, in grass farms, the whole rent is payable for the possession during the summer months, would seem to be equally inconsistent with the fact, and with the settled rule of law, which has divided the rents into moieties, and appointed a legal term for the payment of each; Kames, Eluc. p. 65. et seqq.

The defender's general doctrine is also confirmed by the terms of the tacks in this case, which declare, that each half year's rent is payable “for the half year preceding that term.”

Observed on the Bench: In whatever manner the tack may be expressed, it is plain, that in a grass farm, the entry being at Whitsunday, the grass crop of that year is the tenant's first crop; and although he pays no rent till, Martinmas and Whitsunday thereafter, yet this rent, when payable, is for the preceding crop and year, not for the subsequent. Anticipating the term of payment may have an effect upon the succession; but postponing it can have none.

The Lord Ordinary had sustained the defences, “both on the general point, and on the special terms of the tacks of the grass farms in question.”

The Court altered that interlocutor, and found, that the half year's rent payable at Martinmas 1791 belonged to the Trustees.

Lord Ordinary, Dreghorn. Act. Lord Advocate, Wight. Alt. Tait. Clerk, Home. Fac. Coll. No. 6. p. 14.