Chalmer's Trustee v Dick's Trustee
| Jurisdiction | Scotland |
| Judgment Date | 18 March 1909 |
| Date | 18 March 1909 |
| Docket Number | No. 127. |
| Court | Court of Session |
Ld. Johnston, Lord Justice-Clerk, Lord Stormonth-Darling, Lord Low, Lord Ardwall, Lord Dundas.
Lease—Construction—Termination of Lease by Tenant's Bankruptcy—Right to Sown Crops.—
The general rule of law is that he who sows a crop is entitled to reap it, but that right may be modified or taken away by contract between the landlord and the tenant.
Terms of a farm lease on a construction of which held (aff. judgment of Lord Johnston) that the right of a tenant (whose lease had been conventionally terminated by his bankruptcy) to follow and reap sown crops, and for that purpose to continue in possession of the land, was excluded by the provisions of the lease, to the effect of binding both himself and the trustee on his sequestrated estates, and that none of such crops were at the date of his sequestration moveable property of the bankrupt and as such vested in his trustee.
Observations, per Lord Johnston (Ordinary) and Lord Low, on the nature of a tenant's right to reap a crop which he has sown.
William Kid Macdonald, sole acting trustee under the trust disposition and settlement of the late John Inglis Chalmers, Esquire, of Aldbar, presented a note of suspension and interdict against John Milne, trustee on the sequestrated estate of Stewart Dick, farmer, in which he craved the Court ‘to suspend the proceedings complained of, and to interdict, prohibit, and discharge the respondent and all others acting on his behalf (First) from trespassing or entering upon the farm of Broomknowe, part of the estate of Aldbar, lying in the parish of Aberlemno and county of Forfar; (Second) from performing any agricultural operations on the said farm of Broomknowe, and, in particular, from ploughing, preparing, or manuring any part of the said farm for the purpose of sowing or planting potatoes or turnips or other seeds or plants, and from sowing or planting the same; and (Third) from molesting or interfering with the complainer, or any one acting on his behalf, in their performance of agricultural operations on the said farm of Broomknowe; and to grant interim interdict.’
The lease excluded assignees, legal and voluntary.
The following narrative of the facts, which were not in dispute, is taken from the opinion of the Lord Ordinary (Johnston):—
‘In 1906 the trustees of the late John Inglis Chalmers, of Aldbar, let to Stewart Dick the farm of Broomknowe for nineteen years, from Martinmas 1906, at a rent of £235, payable at Lammas 1907, and Candlemas 1908, for crop and year 1907, and so forth thereafter, except that the last term's rent was payable at the Martinmas of removal.
‘The parts of the lease which are material are:—The farm was to be cultivated upon the most approved rules of good husbandry on a seven-year shift; the whole straw and turnips grown on the farm were to be consumed thereon by the tenant's cattle, and the whole manure made on the farm to be applied to the land, with the exception of the last or waygoing crop; the tenant was to be entitled to dispose of the whole of the waygoing crop on the ground before it was reaped, or to reap the same himself, with the option to the proprietor or incoming tenant of taking at valuation anything up to one-half of both grain and straw; the tenant was bound to leave the turnips of the waygoing crop in the ground, to be paid for at valuation on the footing of being consumed upon the farm; the valuation of the grain and straw was to be made in the second week of August, and of the turnips in the first week of November; if the proprietor or incoming tenant did not exercise the option of taking the crop, the tenant was to be entitled to dispose of the whole waygoing crop of corn of corn and fodder as he might think fit; manure and unconsumed straw left on the farm made previously to 15th May of the waygoing year was to be the landlord's without payment, and the manure made after that date on payment of one-half its value; the tenant was to be allowed for the whole of said valuation prices at the term of Martinmas, being the term of removal, but “in no case shall the tenant, or anyone in his right, be entitled to claim payment of any of the said valuation prices until all rents due or payable under this lease, and all obligations prestable by the tenant to the proprietors, shall have been fully implemented or secured.”
‘With regard to the waygoing, it was particularly “declared” that the proprietors or incoming tenant shall be entitled to “enter into possession of each field of the farm hereby let, whenever the last crop under this lease shall have been led in, and shall likewise have right to the necessary accommodation at the steading for his men and horses, and the tenant hereby agrees to allow the proprietors or incoming tenant to sow, free of charge, grass seeds with any part of the last year's corn crop under this lease, which grass seeds the outgoing tenant shall harrow and roll in, in proper season, free of charge for the labour or privilege.” Should the tenant sow out the grass seeds of the last crop himself, he was to be entitled to payment for the seeds. And the tenant was not to be entitled to pasture the stubble of the last crop laid down with grass seeds, but bound carefully to preserve the young grass.
‘The reason why I have somewhat carefully examined the lease, particularly as it bears upon the waygoing, is that I think a careful consideration of the waygoing provisions is necessary for the construction of the clause to which I shall immediately advert, on which the question raised in the present suspension turns. That provision is as follows:—It is provided and agreed that in case the tenant shall become bankrupt during the currency of the lease, “this tack shall, in the option of the proprietors, become absolutely void and null, and that without any declaration or other proceeding at law whatever, and it shall not be in the tenant's power, without the proprietors” consent, to continue any longer in possession of, or carry on and manage the said farm and others for his own or his creditors' behoof, and the proprietors shall be entitled to re-enter and resume possession of the said farm, or to re-let the same, in like manner as if this lease had come to its natural termination.”
‘Stewart Dick, the tenant, was sequestrated under the Bankruptcy Statutes on 20th April 1908, on which day the respondent, John Milne, auctioneer, Brechin, was appointed interim factor on the sequestrated estate, and he was elected trustee in the sequestration on 1st May, and confirmed on 6th May 1908. At the same time William Kid Macdonald, who had become the sole acting trustee in the late Mr Chalmers' trust, had raised proceedings in the Sheriff Court to have it found that an irritancy of the lease had been incurred, and that the lease had become null and void, and to have the said Stewart Dick ordained to remove from the farm and for warrant for ejection. Decree in this action was obtained on 24th April 1908, while Milne was interim factor, and before he had been appointed trustee. It is disputed whether he was verbally informed of the decree at the meeting of creditors on 1st May, when he was elected, but he admits that it was intimated to him on 5th May, the day before he was confirmed. The steps of process in the removing were:—It was presented on 22d April. On the following day the tenant, Stewart Dick, accepted service, dispensed with the induciœ, and consented to decree, and on the 24th decree was pronounced in respect of the consent. He was charged on the decree of removing on 5th May. Disregarding this decree Milne endeavoured to enter on the farm and to proceed to prepare the ground for green crop and generally to carry on the agricultural operations of crop and year 1908, and to prevent the landlord taking possession and carrying on the cultivation. Accordingly Mr Macdonald, as trustee foresaid, brought this suspension, presented on 6th May 1908, to have the respondent Milne interdicted from (1) entering on the farm of Broomknowe, (2) performing any agricultural operations thereon, and particularly preparing or planting a green crop, and (3) interfering with the complainer or his servants in their performance of agricultural operations on the said farm.
‘The species facti thus are:—(1) Sequestration was awarded as of date 20th April 1908, there having been necessarily prior notour bankruptcy.
‘(2) Decree of removing of the tenant was granted on 24th April on a petition presented on 22d April.
‘(3) Prior to the sequestration the grain crop of 1908 had been sown, but in that district it is doubtful whether it had brairded. It certainly could have done no more.
‘(4) Potatoes had not been planted nor turnips sown, though certain work in the way of preparation of the ground had presumably been done.
‘(5) The grass seeds sewn out with crop 1907 were coming on for the hay crop of 1908, making the first year's grass of year 1908 on the farm. Grass seeds had not been sown out with the grain crop of 1908.
‘(6) There were breaks of second and third years' grass on the farm.
‘(7) The rent for crop and year 1907 being due at Lammas 1907, and Candlemas 1908, had been paid; the rent for the crop and year 1908 was, at the date of Dick's sequestration, in no part due.
‘The trustee's demands are on the footing that he is entitled to the whole benefit of the lease for crop and year 1908—that is, to the grain crop sown, to the hay crop growing, to the second and third years' grass, and to plant the turnip and potato crops, and to win the same, and therefore to remain in full agricultural possession for crop and year 1908, as if Martinmas 1908 was the ish of the lease, and then to go out with all the advantages of a waygoing under the lease, but under...
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