Scottish Court of Session Decisions

LORD PRESIDENT (Cooper).—The pursuer recently purchased certain lands in Aberdeenshire, including the arable farm of Bruckleseat, and obtained infeftment on 21st April 1948. The previous proprietor had granted a lease of Bruckleseat to the defender in December 1947, with entry at Whitsunday 1948. The pursuer as singular successor in the subjects claims that this lease is not binding upon him, and he has obtained in Aberdeen Sheriff Court an interdict against the defender from entering or trespassing upon any part of the farm or in any way interfering with the pursuer in the possession of these subjects.

I shall not examine what happened in the Court below, because the pleadings have been extensively amended before us, and the case is now a different one from that which the Sheriff-substitute had to consider. The single surviving issue falling to be determined by us is whether the facts which are common ground do or do not suffice to impart to the defender's lease of Bruckleseat the quality of a real right available against a singular successor under the Act 1449, Chapter 18, and in particular whether the defender's personal right against the former proprietor of the lands with whom he contracted has been perfected by possession so as to be valid in a question with the present pursuer.

The essential facts are these:—As I have said, entry under the defender's lease was at the term of Whitsunday 1948; but the lease incorporated one version, and a rather unusual version, of the provisions familiar in agricultural leases, by which arrangements are made for the change-over from an outgoing to an incoming tenant. In particular it was provided by article 23 of the estate regulations which were incorporated in the lease that in the case of a Whitsunday lease the date of removal of the outgoing tenant from the land falling to be under green crop should be 1st March, and by implication that the incoming tenant should get access to such land on that date. Parallel provisions, not applicable to this case, are made in article 24 with regard to leases ending at the term of Martinmas; and by the concluding article, No. 31, it is provided that "notwithstanding any existing law or practice to the contrary, but without prejudice to the actual dates of removal specified in articles 23 and 24 hereof, it is specially agreed that, if a lease nominally ends at Whitsunday, the termination of the lease or determination of the tenancy for the purposes of the Agricultural Holdings Acts shall be deemed to be the 15th day of May, and if at Martinmas, shall be deemed to be the 11th day of November."

What actually happened was that the defender availed himself, as he was entitled to do, of the implied right conferred by article 23 of the estate regulations by commencing certain operations on the land falling to be under green crop in the month of March, and by performing during March and early April on some five or six specified days sundry agricultural operations, such as discing, harrowing, drilling and preparing ground and sowing crops, the total area so affected being, we were informed, two-sevenths of the acreage of the holding. The question comes to be whether in executing these operations prior to the date of entry the defender was in possession of the subjects in such a sense as to convert his personal right into a real right.

The point is manifestly novel, for neither side was able to refer us to any apt precedent to guide us in determining the question—the specialty arising in part from the provisions of this lease, and in part from the accident that the change in tenancy and the change in ownership occurred practically simultaneously, and that (for some reason which has not been made apparent to me) the seller and the purchaser failed in the sale transaction to make the stipulations which one would have thought proper for the safeguarding of the rights already conferred by contract upon the new tenant. Deprived of any assistance from direct authority we are forced back on first principles.

It has been well settled for centuries that possession under a lease is the equivalent of sasine in relation to feudal property. Without possession the tenant is merely the personal creditor of the lessor. By entering into possession the lessee publishes to the world in general, and to singular successors in particular, the fact of his lease, and since the practice of taking sasine on a tack fell into disuse in the 15th century, no substitute has been recognised by our law for possession except registration of long leases under the Act of 1857. In the old days of the Act of 1449 and indeed for long afterwards, when holdings were small in size and agricultural operations were primitive, the present question could hardly have arisen, because it would normally be a matter of simple inspection to discover whether or not, to quote the words of the old statute, "puir people" were "labouring" a given piece of ground, or whether the land was derelict. But under modern conditions, with the introduction of new crops and a system of rotation, and with leases containing such provisions as are exemplified here by which the out-going tenant is displaced stage by stage by a gradual process from one part of the farm after another, it becomes a matter of no little difficulty to decide at what stage the incoming tenant acquires possession in the full sense of the rule of law to which I have referred. The best clue to the problem which I have been able to derive from the valuable debate to which we listened is to be found in the opinions both in the Court of Session and in the House of Lords in the case of Wight v. Earl of Hopetoun . The problem before the Court in that case was a different one, and the lease which was before the Court was one in which interest centred, not upon the right of the incoming tenant to occupy parts of the subjects before the proper date of entry, but upon the privilege conferred on the outgoing tenant—a privilege which the common law in any event would have given him—of remaining in occupation after the determination of the tenancy for the purpose of reaping the crops which he had sown. In that case the Court found it necessary to consider generally the essentials of an agricultural lease, with special reference to its beginning and its end, and it is in reference to that matter that I refer to the opinion of the Lord Ordinary, Lord Kinloch (at p. 1099), of Lord Justice-Clerk Inglis (at p. 1101) and of the Lord Chancellor, Lord Westbury, (at p. 37 of 2 Macph.). I quote a few sentences from the opinion of Lord Kinloch, the Lord Ordinary, because his views were expressly approved in the House of Lords at a later stage. His Lordship says this:—

"In legal construction ‘the term of nineteen years’ runs from the Whitsunday at which the tenant enters on the possession. The lease is one and indivisible. There are not two leases, with two periods of commencement and two periods of expiry. The lease begins at Whitsunday. It is for a fixed period of nineteen years, and therefore terminates at the

Whitsunday that occurs nineteen years afterwards. On any other supposition"

(and his Lordship was talking of the supposition that the outgoing tenant was still in full possession after the ish) "the lease would not be for nineteen years, but for nineteen years and something more. The whole rent (not a part of it) begins to run at Whitsunday, and continues running for nineteen years thereafter—no longer. The argument of the defenders appears to the Lord Ordinary to confound two distinct things—the duration of the contract, and the arrangements about possession. The provision as to not entering to the arable land till the separation of the crop from the ground is merely an arrangement as to possession, made for the protection of the outgoing tenant, or rather expressive of the common law right which the outgoing tenant had to reap the crop he had sown. The same protection of course attached to the incoming tenant when his time arrived to leave the land. … The ‘separation of the crop’ is not the legal ish. Indeed, the phrase is not in its nature expressive of a proper term of expiry, for, independently of its general uncertainty, it indicates a right to enter, and a corresponding obligation to leave, in the case of each field, so soon as that field is cleared, and so may comprehend not one, but many terms."

I need not read further from the opinions in that case, for they are of the same general tenor, and indicate to my mind that a Whitsunday lease (and this is a Whitsunday lease) does not cease to be a Whitsunday lease—and a Martinmas lease does not cease to be a Martinmas lease—merely because it includes what was described as the "excrescence" of certain "arrangements for possession," whether conventional or dependent on the common law, by which different parts of the subject pass from the hands of the outgoing to the incoming tenant for limited purposes at different times. I think it follows from the case of Wight v. Earl of Hopetoun, and particularly from the opinion of Lord Westbury, which I shall not read at length, that the incoming tenant who under such an arrangement is permitted to occupy part of the subjects in advance of the true term of entry merely exercises a limited right or privilege, and the same is true of the outgoing tenant who under a parallel arrangement continues in occupation for the limited purpose of harvesting the crop after the determination of the tenancy.

The matter might be looked at from a different angle by considering what it is that the tenant must possess in order to convert a personal into a real right. The only possible answer is that he must possess the lands, the subject of the lease, the lands viewed as a unum quid and as the subject of what Lord Kinloch described as a "lease one and indivisible." If that is the true view it is impossible to describe a person who is exercising the limited right or privilege of anticipatory or deferred occupation of certain parts of the subjects as being in any proper sense in possession of the whole. Again, there is this further point that by its very nature and according to the juristic principles which underly the doctrine possession, to have the effects which the law imparts to it, must always be exclusive. Upon the view presented for the appellants in this case, I can see no escape from the conclusion that throughout the whole gradual process, beginning in the case of this lease on the 1st of March 1948 and ending when the last sheaf in the latest field has been safely gathered home, two persons, namely the incoming tenant and the outgoing tenant, must both simultaneously have been in possession of this holding. That I find a hard saying. The taking of sasine upon a medieval tack could only have been performed when the new tenant replaced the old on the date of entry. The possession which has replaced sasine cannot begin at any earlier date.

If this line of reasoning is sound, the case as presented to us in this Court must take end, upon the ground that the limited acts of occupation performed by the defender on the six or seven days when he worked certain fields in March and early April last did not amount to possession within the meaning of the rule, having taken place by virtue only of a limited licence before he obtained that entry at Whitsunday which is the only true and legal entry for which this lease provides.

At the same time I wish to say that I have very considerable sympathy with the defender in this case, certain aspects of which though they were not fully developed before us but only before the Sheriff-substitute leave an unfavourable impression upon my mind as to the behaviour of the seller and the present owner of the property in relation to this matter. Had the case come before us on the same footing as that on which it was presented to the Sheriff-substitute, I am by no means committed to the view that I should have reached the same result. Moreover, since it appears that the defender has expended labour and material, presumably in good faith, in enriching another man's land, it by no means follows that, because we are unable in this action to give him the remedy which he seeks, he is not in a position to enforce his rights in another form and possibly against other parties.

In regard to the form which our interlocutor should take, I suggest to your Lordships that, in view of the method in which the case was presented to us, we should ignore any possible technical difficulties arising from the fact that the action was commenced before infeftment was obtained by the pursuer by simply pronouncing a finding to the effect that the defender has not by possession under the lease converted his personal into a real right.

LORD CARMONT .—I agree.

LORD RUSSELL .—I also agree.

LORD KEITH ,—I agree with what your Lordship has said with regard to the legal issues involved in this case. I wish also to associate myself with what your Lordship has said with regard to the origins of this unfortunate litigation and as to the possible results. It seems to me from what I have seen that either there has been a grave omission to protect the defender in his contractual rights or a deliberate plan to defeat these rights.