BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!
 |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | |
Scottish Court of Session Decisions |
||
|
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Morison v. Kidd [1916] ScotLR 604 (09 June 1916) URL: http://www.bailii.org/scot/cases/ScotCS/1916/53SLR0604.html Cite as: [1916] ScotLR 604, [1916] SLR 604 |
||
[New search] [Printable PDF version] [Help]
Page: 604↓
In a proviso to section 2 (1) (ii) and (iii) of the Small Landholders (Scotland) Act 1911 it is provided that a tenant from year to year or a leaseholder shall be held an existing yearly tenant or qualified leaseholder where such tenant or leaseholder or “his predecessor in the same family” has provided or paid for the whole or the greater part of the buildings or other permanent improvements on the holding.
Held (1) that neither a father-in-law nor a brother-in-law could be a predecessor “in the same family,” and (2) that an assignation by them was of no effect in this matter.
The Small Landholders (Scotland) Act 1911 (1 and 2 Geo. V, cap. 49), sec. 2, which enacts who are to be landholders, contains regarding (1), (ii), and (iii), which deal with the tenants who are eligible, the following proviso—“( a) Provided that such tenant from year to year or leaseholder ( a) shall (unless disqualified under section 26 of this Act) be held an existing yearly tenant or a qualified leaseholder within the meaning of this section in every case where it is agreed between the landlord and tenant or leaseholder, or in the event of dispute, proved to the satisfaction of the Land Court, that such tenant or leaseholder, or his predecessor in the same family, has provided or paid for the whole or the greater part of the buildings
Page: 605↓
or other permanent improvements on the holding without receiving from the landlord or any predecessor in title payment or fair consideration therefor. …” Section 2—“In the Landholders Acts the word ‘landholder’ means and includes … every existing yearly tenant, every qualified leaseholder.…” Section 21—“In the event of a landholder being unable to work his holding through illness, old age, or infirmity, he may apply to the Land Court for leave to assign his holding to a member of his family, being his wife or any person who, failing nearer heirs, would succeed him in the case of intestacy, and if, after intimation to the landlord and any other party interested, and such hearing or inquiry as the Land Court may consider necessary, it appears to the Land Court that such assignment would be reasonable and proper, it shall be competent to the Land Court to grant such leave on such terms and conditions, if any, as may to them seem fit.” Alexander Edward Forbes Morison of Bognie, appellant, brought a Special Case appealing from a decision of the Scottish Land Court in an application by William Kidd, Upper Rasbieslack, Ythanwells, by Insch, respondent, for an order or orders (1) finding and declaring that he, the respondent, was and had been from and after 1st April 1912 (or other date) a landholder in and of the holding possessed by him and held from year to year at the said date, and (2) fixing a first fair rent for the said holding.
The Case stated—“… 2. The application was heard and evidence taken at Aberdeen on the 13th March 1913. It was objected for the proprietor (1) that the greater part of the buildings and other permanent improvements on this holding had been provided or paid for by the proprietor and not by the applicant or any predecessor in the tenancy of the said holding; (2) that the tenants who preceded the applicant in the tenancy of the holding, namely, William Bannerman and John Bannerman, were not predecessors of the applicant ‘in the same family,’ and therefore that no buildings or other permanent improvements provided or paid for by them could be taken into account in favour of the tenant in determining whether the applicant was or was not a landholder. …
4. It was proved to the satisfaction of the Land Court (i) that the greater part of the existing buildings and other permanent improvements on this holding, after taking into account the value of the expenditure of £90, 4s. specified in article 5, had been provided or paid for by (1) William Bannerman, who was the first tenant of this holding as a separate holding, and held it from 1850 or earlier until Whitsunday 1888; (2) John Bannerman, a son of the said William Bannerman, who succeeded his said father in the tenancy of this holding as at Whitsunday 1888, under a lease for nineteen years from the said term, dated 20th January and 25th April 1890; and (3) the applicant William Kidd, who succeeded John Bannerman in the said tenancy as assignee, with consent of the then proprietor, of the said John Bannerman as from and after Whitsunday 1902 under the after—mentioned assignation dated 21st January and 12th February 1902. The applicant continued to possess the said holding until the expiry of the term of the said lease at Whitsunday 1907, and thereafter continued to possess the said holding as resident and cultivating tenant from year to year, and did so possess it at the date when the Small Landholders Act of 1911 came into force—1st April 1912. (ii) That no payment or fair consideration had been received by the said tenants or any of them therefor from the proprietor or any predecessor in title of the proprietor.
5. It was proved to the satisfaction of the Land Court that the then proprietor had at the entry of the said John Bannerman expended a sum of £90, 4s. on repairs and alterations upon the steading of the said holding, and that the tenant had at his own expense done the mason work and performed all cartages of materials in connection with the said repairs and alterations at his own expense. The said lease in favour of John Bannerman, dated 20th January and 25th April 1890, contained a clause in the following terms:—‘( Third) The proprietor having at the entry of the tenant expended a sum of £90, 4s. on repairs and alterations upon the steading of offices on said farm, the tenant having done the mason work and performed all cartages of materials in connection with said repairs and alterations, the whole buildings on the farm, which with the fences belong to the proprietor, are hereby handed over to the tenant and accepted of by him as suitable and sufficient for the farm, and as in good tenantable order and repair, and he shall be bound to uphold and maintain the same in the like good tenantable order and repair at his own expense during the lease and leave them in that condition at his removal, but it is hereby expressly provided and declared that the tenant will have no claim at his removal against the proprietor for meliorations on houses or otherwise.’
6. It was proved that the said William Kidd, when he entered on the tenancy of this holding, was son-in-law of the said William Bannerman and brother-in-law of the said John Bannerman.
7. By the said assignation dated 21st January and 12th February 1902 the said John Bannerman, with the consent of the then proprietor, assigned to the respondent and his heirs all the cedent's right and interest in and to the said lease from and after the term of Whitsunday 1902, surrogating and substituting the respondent and his foresaids in the said John Bannerman's full right and place in the premises, with full power to him and them to do everything requisite and necessary concerning the premises which the said John Bannerman could have done himself before granting thereof.
8. It was not proved that the permanent improvements provided or paid by the said William Kidd during his tenancy amounted to the greater part of the buildings and other permanent improvements on the holding. If the buildings and other permanent improvements provided or paid for
Page: 606↓
by the said William Bannerman and John Bannerman ought to have been excluded from consideration the said William Kidd is not a landholder, but a tenant subject to the provisions of section 32 of the Small Landholders Act of 1911 relating to statutory small tenants.… The order of the Land Court was—“ Edinburgh, 25th November 1913.—The Land Court having inspected the holding and resumed consideration of the application and of the evidence adduced, Repel the objections stated to the application by the respondent, and find and declare that the applicant is a landholder within the meaning of the Small Landholders Acts 1886–1911; and having considered all the circumstances of the case, holding and district, including any permanent or unexhausted improvements on the holding and suitable thereto, executed or paid for by the applicant or his predecessors in the same family, have determined, and do hereby fix and determine, that the fair rent of the holding is the annual sum of £25 sterling: Find no expenses due to or by either party.”
The note appended to the order, inter alia, stated—“But it is maintained that the applicant cannot claim the benefit of any improvements executed or paid for by his father-in-law and brother-in-law who preceded him in the tenancy, because on a sound construction of the Acts 1886–1911 they are not his ‘predecessors in the same family.’ For the reasons assigned in the case of George Taylor, R.N. (Aberdeen) [7 Scottish Land Court Reports, Taylor v. Seaton, vol. ii, part 3, p. 26], we think that the words ‘in the same family’ should receive a liberal construction, and that the applicant is for the purposes of section 6 (1) of the Act of 1886 and section 2 (1) of the Act of 1911 a member of the same family with his father-in-law, and therefore also with the son of his father-in-law who preceded him in the tenancy of this holding. But there is a separate ground in the present case on which we think that the applicant is entitled to the benefit of their permanent improvements for the purposes of these sections. By the assignation of 12th February 1902 the applicant was, by the landlord and the then tenant John Bannerman, his brother-in-law, surrogated and substituted in place of John Bannerman from and after Whitsunday 1902— assignatus utitur jure auctoris. It seems to follow that in rights, benefits, or obligations relating to or arising out of the tenancy of the holding, whether conferred by common law, contract or statute, the applicant stands in no worse position than John Bannerman would have stood in if he had been the applicant.”
The questions of law were, inter alia—“2. Whether any buildings or other permanent improvements provided or paid for by William Kidd's said father-in-law and said mother-in-law were provided or paid for by William Kidd's ‘predecessors in the same family’ within the meaning of section 2 (1) of the Small Landholders (Scotland) Act 1911? 3. Whether by virtue of the said assignation the said William Kidd acquired any right, title, or interest in the permanent improvements provided or paid for by his said predecessors in the tenancy of this holding, or by either of them, for the purpose of determining whether the said William Kidd is a landholder of and in the said holding under section 2 (1) of the Small Landholders Act, 1911?”
Argued for the appellant—Brothers were of the same family, but not cousins— M'Lean v. M'Lean, 1891, 18 R. 885, 28 S.L.R. 698. According to the Crofters' Holdings (Scotland) Act 1886 (49 and 50 Vict. 29), sec. 16, a crofter could not bequeath anything to his maternal cousin, who was not to be regarded as a member of the same family— Mackenzie v. Cameron, 1894, 21 R. 427, 31 S.L.R. 347. The Small Landholders (Scotland) Act 1911 (1 and 2 Geo. V, cap. 49), sec. 21, showed that a son-in-law as an assignee could not be considered in this matter. Family relation could not be brought about by assignation. A man could not invoke an assignation as giving him any rights which were only conferred by statute as a member of a family. Submitted that the Land Court had erred here, and that question 2 should be answered in the negative, as also question 3.
The respondent did not appear.
Page: 607↓
The third question is one of which we are also in a position to dispose. It is whether by assignation the assignee of a croft can be put in possession of the right in the improvements made by the assignor so as to bring the assignee within the scope of section 2 (1) (iii). The rights of assignation given to a landholder are regulated by section 21 of the Act of 1911, and it seems to me that they clearly result in this, that a voluntary assignation to a brother-in-law is not enough to bring him within the terms of that section, in which the power of assignation is limited to an assignation “to a member of his family, being his wife or any person who, failing nearer heirs, would succeed him in the case of intestacy.” In my opinion a voluntary assignation cannot be held as conferring upon the assignee rights which under the statute he can have only if he derives from those who belong to the same family as himself. I am therefore of opinion that the third question should also be answered in the negative.
Reference was made in the note appended to Taylor's case to the idea of recompense. If that idea is introduced it only makes it all the more plain that a son-in-law has no claim of recompense in respect of improvements executed by his father-in-law, and still less in respect of improvements executed by his brother-in-law; and yet the Land Court have included improvements both by the brother-in-law and by the father-in-law in order to reach the result that the cumulo value of the improvements brought this man within the scope of the Act.
On the third question I agree entirely with what your Lordship in the chair has said. It seems to me to be almost too clear for argument that a man cannot assign a privilege which is conferred by statute upon a limited class to which the assignee does not belong.
In the second place, suppose the father-in-law and the brother-in-law are reckoned in the category of predecessor, the Act says they must be members of the same family as the landholder. “Family” certainly primarily refers to a blood relationship where you have mutual rights and obligations in the way of aliment and succession. It is said by the Land Court that the words should receive a liberal construction. That may be quite sound in certain circumstances. It may be that although the wife is not a blood relation if she had happened to be the predecessor before marriage she might on a liberal construction of the term “family” have been included, because in the eye of the law and in popular language, whatever the fact be in the particular case, she leaves her own family and enters her husband's family. But in no sense can a man be said to be a member of the family of his father-in-law or of his brother-in-law. That is perfectly clear in law, in equity, and in good sense. The reasons, which are quite intelligible and indeed very strong in the case of true members of a family, do not apply to a case in which the two persons have neither rights nor obligations inter se.
The Court answered the second and third questions stated both in the negative.
Counsel for the Appellant— Macmillan, K.C.— MacRobert. Agent— Alex. Ross, S.S.C.
