Scottish Court of Session Decisions

Lord President—The late Mr Marmaduke Constable Maxwell was heir of entail in possession of the estate of Terregles till his death on July 16, 1872, and the present question is between his executor and the next heir of entail. The rents payable on the estate were forehand rents, and the crops to which, if the rents had been payable at the ordinary legal terms, they would have belonged, were not yet reaped. The terms of the lease, however, are distinct. The rent was to be “payable half-yearly, by equal portions, at the terms of Martinmas and Whitsunday, beginning the first term's payment at the first term of Martinmas after the entry for the half-year preceding, and for the next half-year at the Whitsunday thereafter, and so on half-yearly and termly during the lease, with interest and penalty during the not-payment.” As the entry was to be at Whitsunday, it is plain that the payment to be made at the Martinmas following was not for the crop then reaped, and so the lease bears that it was for the half-year previous—it was rent payable for a period of time, and not for a crop. In like manner, under another form of lease introduced by Mr Maxwell himself, the rent is said to be for the half-year preceding, and so on half-yearly and termly—a form of words which means the same thing. Now, on the part of the heir of entail, we have had argument on the authorities applicable to postponed rents, which seems to me to have no bearing on this case. In such a case as that, the question is determined by reference to the legal terms, and the rule in forehand rents being different, the application of that principle to this kind of rent has never been recognised. As Lord Kilkerran says in the case of Murray Kinnynmond—“If, by the convention of parties, annualrents, for example, be made payable before the legal term, the executors will have the benefit of that convention; and the case would be the same in a forehand payment of rents of lands, for there is no instance of what is both due and exigible not going to executors.” Now, no doubt this does not solve the question as to the Apportionment Act, but it shows how the parties agreed that the rents falling due at Whitsunday 1872 should belong to the executor. Now, this rule of law would not have been applicable to an entailed estate if forehand rents had been a novelty—if the previous heir of entail had himself introduced them,—for he would, in that case, have been taking an undue advantage to himself. But that is not the case here, for forehand rents are the law and custom of the estate adopted by the entailer. On the authority of the decisions in the case of the Queensberry estates, this is like a fee-simple succession, and the question here is, Are forehand rents for periods of time, not crops, subject to the second section of the Apportionment Act? Mr Marshall says they do not accrue during the period at the term of which they are payable; that a rent cannot be growing due during half-a-year. This argument is fallacious, whether we look at the terms of the Act or of the leases. The rent is payable at Martinmas for a half-year, and the same at Whitsunday; that must be a current rent accruing, growing as much in the one case as in the other. The object of the Act was to simplify the law of apportionment—to make everything in the nature of income apportionable,—and so it is made matter of enactment that everything payable in the nature of income is to be held as accruing, whether it does so of its own nature or not. In short, whatever is of the nature of income, payable at the next term, is held to be growing due day by day. I am clearly of opinion that the rent payable at Martinmas must be divided between the heir and executor, and consequently that the question must be answered in the affirmative.