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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Taylor v. Earl of Moray [1892] ScotLR 29_336 (23 January 1892) URL: http://www.bailii.org/scot/cases/ScotCS/1892/29SLR0336.html Cite as: [1892] ScotLR 29_336, [1892] SLR 29_336 |
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Landlord and Tenant — Holding — Agricultural Holdings Act 1883(46 and 47 Vict. c. 62), sec.35.
A tenant against whom a decree had been obtained at the instance of the landlord, ordaining him to remove at the next Whitsunday term, continued in possession of his holding after that term. On 18th June he was charged under the decree to remove on pain of ejection. In a suspension of the charge brought by the tenant the Court repelled a plea to the effect that the landlord by his delay in enforcing the decree had allowed his remedy under it to lapse.
A tenant occupied a dwelling-house, garden and land, for which he paid
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a rent of £3 a-year. The whole subjects embraced an area of three quarters of an acre, and the value of the land apart from the house was estimated at 15s. per annum. Held that the provisions of the Agricultural Holdings Act did not apply to such a holding, in respect that the land was occupied as a mere accessory to the house, and the holding was not in the sense of section 35 of that Act “either wholly agricultural or wholly pastoral, or in part agricultural and as to the residue pastoral.”
Peter Taylor presented a note for suspension of a charge to remove from the possession of a house and land at Crook of Alves, which had been served upon him at the instance of the Earl of Moray on 18th June 1891.
The facts which led to the application were as follows—The complainer was a travelling grocer, and since Whitsunday 1878 he had been in occupation, as a tenant from year to year, of certain subjects belonging to the respondent, situated in the village called Crook of Alves. He paid a rent of £3 per annum. The subjects consisted of a dwelling-house, stable, pig-house, sheds, a piece of garden ground, and a field surrounding the garden. The whole subjects embraced an area of three quarters of an acre, of which the field occupied about half an acre, and the remaining quarter of an acre was taken up by the house and garden, The complainer lived in the house, kept his horse in the stable, and his van in one of the sheds. Prior to 1884 the field had been occasionally cropped, but since that year the complainer had kept it in permanent pasture. He grazed his horse in the field, and sometimes cut the grass to make hay for it. The value of the land apart from the house was estimated at 15s. a-year.
On 5th November 1890 a summons of removing at the instance of the respondent was brought against the complainer in the Sheriff Court at Elgin; and on 20th November the Sheriff, in respect of no appearance having been entered for the complainer, pronounced decree of removing. The decree was in the form prescribed by the Act of Sederunt of 27th January 1830, and decerned the complainer to remove at Whitsunday 1891, and ordained the officers to charge the complainer to remove at the said term “if the charge to remove be given forty-eight hours before that term, or within forty-eight hours after the charge in case the same is not given forty-eight hours before that term, under pain of ejection.” The complainer did not remove at Whitsunday 1891, and accordingly in pursuance of the decree he was on 18th June charged to remove on pain of ejection within forty-eight hours. He thereupon presented this note of suspension to stop the process of ejection.
The complainer pleaded—“(1) The said decree and charge are inept and invalid, and ought to be suspended and set aside, with expenses, for these reasons—( c) Assuming the validity of the decree, the petitioner allowed his remedy thereunder to lapse: ( d) The complainer being tenant of a holding in the sense of the Agricultural Holdings Act 1883 (46 and 47 Vict. cap. 62), got no notice in terms of section 28 thereof.”
Section 35 of the Agricultural Holdings Act 1883 provides—“Nothing in this Act shall apply to a holding that is not either wholly agricultural or wholly pastoral, or in part agricultural and as to the residue pastoral, or in whole or in part cultivated as a market garden, or to any holding let to the tenant during his continuance in any office, appointment, or employment of the landlord.”
On 16th December 1891 the Lord Ordinary ( ), after a proof, repelled the reasons of suspension, found the charge orderly proceeded, and decerned, &c.
“ Opinion.—… The first question the complainer raises is this, and Mr Watt stated it very distinctly. He said that although the charge was in conformity with the decree, yet it came too late, because while the decree authorised a charge either before or after the term of removal, yet that merely permitted a latitude of a day or two beyond the term, and did not authorise the postponement of the charge for a period of three weeks. In other words, the term being allowed to pass, and three weeks after it being allowed to pass, the tenant was entitled to assume that the decree was passed from, and he was to be allowed to remain in possession for another year. That is the first point. Now, I say nothing against the argument that a decree of removal may be passed from. It may well be that if the charge under such a decree is delayed for a lengthened period beyond the term of removal the tenant is entitled to infer that he is to remain in possession for another year. But this case does not seem to me to raise any question of that kind. Three weeks is certainly not an undue period for the necessary steps to be taken, and for the decree to be put in force, and therefore I am not prepared to hold that there was any undue delay in enforcing the charge, or that there has been anything so far irregular in the proceedings.
But then the complainer takes this second point; and he says rightly it is a point of more general importance. He contends that this is a subject to which the Agricultural Holdings Act of 1883 applies, and he maintains that, assuming that the Act did apply, he did not have the statutory warning. Now, it is admitted that if the Agricultural Holdings Act applied, the warning was not sufficient. It was sufficient in point of time, because it was given fully six months before the term of removal, but it was given, it is said, not in the statutory form prescribed by the Act, but in the form of a summons of removal, and therefore the question comes to be, whether the Agricultural Holdings Act applies to subjects of this description? Now, I am of opinion that it does not. I consider that the Agricultural Holdings Act, by the 35th section, excludes from its
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The complainer reclaimed, and argued—1. The respondent having failed to put his decree in force until 18th June, had allowed his remedy to lapse and tacit relocation to operate— Robertson & Company v. Drysdale, February 21, 1834, 12 S. 477. 2. The subjects occupied by the complainer fell within the scope of the Agricultural Holdings Act— vide section 42—and as it was admitted that the complainer had not received warning in the form prescribed by that Act, the respondent was not entitled to remove him— Mackintosh v. Lovat, December 18, 1886, 14 R. 282.
Counsel for the respondent were not called upon.
At advising—
On the first point his Lordship observes—“I say nothing against the argument that a decree of removal may be departed from.” With that I agree. I can figure cases in which the lapse of time between the granting of the decree and its enforcement was so great as to give rise to a presumption of waiver on the part of the landlord requiring to be rebutted by explanation. I can also figure cases where the lapse of time, and the fact that the tenant had acted in the belief, created by the landlord's delay, that he was to be allowed to remain on his holding, would present a composite case giving rise to a plea of bar against the landlord if he attempted to enforce his decree. But if we were to decide in favour of the complainer in this case, our decision would necessarily be taken as meaning that in all cases unless a decree ordering a tenant to remove at the Whitsunday term was put in force before the 18th June, the landlord must be held to have waived his right to enforce it. I am not prepared to be a party to such a decision. I think it is unwarranted by authority, and would be injurious in its effect on tenants against whom decree of removal had been obtained, as it would close the door to any indulgence being granted them by their landlords.
As regards the question whether the Agricultural Holdings Act applies to such a holding as the complainer's, the Lord Ordinary has dealt with that question thus—“This is not a subject which, in my opinion, is either wholly agricultural or wholly pastoral, or partly agricultural and partly pastoral. To the extent of a third of its area it is occupied by this travelling grocer as a dwelling-house and garden, and it is, I think, impossible to contend that the house and garden are here, as in the case of an ordinary farm, mere adjuncts or accessories of an agricultural or pastoral subject. On the contrary, it is, I should say, clear that the field or park, or whatever it may be called, is a mere adjunct or accessory of the house; and that being so, the house is the principal subject, and it cannot by any stretch of construction be held to be an agricultural subject within the meaning of the Agricultural Holdings Act. In short, I think this case is a fortiori of the case of Lovat v. Mackintosh, decided in 1886.” These sentences express my views so accurately and comprehensively that I propose to add only one observation. Mr Watt asked whether the size of a holding could be held to affect the question whether it was a subject within the meaning of the Agricultural Holdings Act? My answer is—Yes, if the size of the holding bears so small a proportion to the size of the house that the land is an adjunct or accessory of the house. Then the legal quality of the holding is determined, and it is seen that the subject is not wholly agricultural or wholly pastoral, or partly agricultural and partly pastoral.
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I agree also on the second question. We are asked to consider this point on the assumption that both parties are agreed that the decree of removing is not good if the subject occupied by the complainer falls under the provisions of the Agricultural Holdings Act, in respect that warning was not given in the form prescribed by the statute. I desire to reserve my opinion on that point. It is unnecessary to consider it, because I think the Agricultural Holdings Act inapplicable for the reasons stated by your Lordship and by the Lord Ordinary.
The Court adhered.
Counsel for the Complainer— C. N. Johnston— Crabb Watt. Agent— Charles Garrow, Solicitor.
Counsel for the Respondent— Æneas Mackay— C. K. Mackenzie. Agents— Melville & Lindesay, W.S.
