Moncreiff v Hay
| Jurisdiction | Scotland |
| Judgment Date | 06 December 1842 |
| Date | 06 December 1842 |
| Docket Number | No. 49 |
| Court | Court of Session (Inner House - Second Division) |
Lord Murray. R.
Lease.—
THE defender, Captain Hay, tutor-at-law to his brother, David Balfour Hay of Leys, by contract of lease dated 5th July 1838, let to one Ovenstone a farm on the estate of Leys, consisting of about 164 acres, the endurance of the lease being for nineteen years from Whitsunday 1838 as to the houses and grass, and the separation of crop 1838 from the ground as to the arable lands. The lease contained the following provision:—‘But delaring, that in the event of the bankruptcy or insolvency of the said John Ovenstone, or of his affairs being managed either under statutory sequestration or voluntary trust-deed, this lease shall ipso facto become null and void at the first term of Whitsunday or Martinmas after such bankruptcy, and it shall not thereafter be in the power of the said John Ovenstone, or his creditors, or his trustees or managers, either directly or indirectly, to assume or continue the possession of the said lands, either by themselves or by means of any other person, or in any other manner of way, for behoof of the said John Ovenstone and his creditors; and the proprietor shall thereupon have the sole right to the said whole lands in the state they may then be in, and to the straw and chaff of all the crops then on the ground or in the barn-yard, and likewise to all the dung, lime, and other manure then on the lands, and shall be entitled to enter to or dispose of the whole as they shall think fit, without any claim or demand being competent to the tenant or his creditors, and shall also be entitled to the full rents for the possession had by the tenant up to the date of his removal.’
Ovenstone entered into possession as stipulated, purchasing from the outgoing tenant the crop on the ground. Having fallen into arrear of rent, a petition for sequestration of his effects was presented in October 1840. The petition for sequestration was followed by a meeting of Ovenstone's creditors and a sale of his effects; and the landlord having brought a process of irritancy and of removing before the Sheriff of Perthshire, the following decree was pronounced by the Sheriff, December 11, 1840:—‘Finds that the defender Ovenstone is due the rents of the said lands to the pursuer as before narrated: That he has failed to keep the houses and steadings insured against fire, in terms of the said lease: That the defender sent the foresaid circular letter, calling a meeting of his creditors, and that the debts in the state exhibited by him to the said meeting amounted to nearly £3000, exclusive of the preferable claim of the pursuer for said rents, as well as of the wages of the farm-servants, for liquidation and satisfaction of which debt the defender did not profess to have any funds, means, or effects, except those sequestrated as aforesaid: And that by all or one or other of the said facts, the said John Ovenstone, defender, was insolvent prior to the term of Martinmas 1840, and that be has thereby incurred the irritancy stipulated by the said lease; and the said Sheriff further found, and hereby finds, that the said defender has forfeited all right and title to the said lease in terms of the stipulation before recited, and to the lands thereby agreed to be set, and that the said lease became null and void at the foresaid term of Martinmas 1840, and that it was not thereafter in the power of the said John Ovenstone, defender, or his creditors, or his trustees, or managers, either directly or indirectly, to assume or continue the possession of the said lands, either by themselves or by means of any other persons, or in any other manner of way, for behoof of the said John Ovenstone and his creditors, and that the proprietor had, at the said term of Martinmas, the sole right to the said whole lands in the state they were then in, and to the straw and chaff of all the crop then on the ground, or in the barn-yard, and likewise to all the dung, lime, and other manure then on the lands; and was entitled to enter to or dispose of the whole as he might think fit, without any claim or demand being competent to the defender or his creditors, and that the pursuer is also entitled to the full rents for the possession had by the defender up to the date of his removal, all in terms of the said lease; and the said Sheriff decerned and ordained, and hereby decerns and ordains, the said defender to flit and remove himself, his family, cottars, subtenants, goods and gear, furth and from the lands particularly before described, and that within eight days after he is charged to that effect, and to leave the same void and redd, to the end that the pursuer, or others in his name, may then enter thereto and peaceably possess and enjoy the same.’
On Ovenstone's removal, the landlord entered into the occupancy of the farm, and took possession of dl the dung and straw thereon. Ovenstone having been thereafter sequestrated under the Bankrupt Act, the pursuer, Mr George Moncreiff, was appointed trustee on his estate, in January 1841. In the sequestration, a difference of opinion arose on the construction of the lease, the trustee demanding the value of the wheat crop and the first crop of sown grass, then both on the ground, deducting the value of the straw and chaff and the rents, for the possession had by the tenant. This demand having been refused, the trustee brought the present action against the landlord, Captain Hay, libelling on the contract of lease, and particularly on the clause declaring that the landlord shall, on the bankruptcy of the tenant, have right ‘to the whole lands in the state they may then be in, and to the straw and chaff of all the crop then on the ground or in the barn-yard;’ and concluding to have it found and declared, that the crops of wheat and grass, or the just and true value thereof, with the exception of the straw and chaff, and under deduction of the proportion of rent corresponding thereto, belonged to the pursuer as trustee, and to have the landlord ordained to pay over to the pursuer a certain sum for the value of the wheat-crop and the grass-crop.
In defence it was pleaded;—
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1. According to the sound construction of the lease referred to, the tenant was bound, in respect of his bankruptcy, to cede possession to the landlord at Martinmas 1840, of the whole lands, in whatever state they were then in, including the land sown with wheat and grass seeds, without any claim whatever against the landlord.
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2. The present action barred by the proceedings in the action of irritancy and removing, before the Sheriff, and by the unchallenged decree pronounced therein.
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3. The present claim is peculiarly unfounded and incompetent, in respect it resolves into a claim by the tenant to continue, or rather to resume, the possession of a portion of the lands, and to split and apportion the cumulo rent in a way not sanctioned by the lease; and this after the lease had been voided by the tenant's bankruptcy, and by the decree of irritancy and removing, and after that decree had been acquiesced in, homologated, and implemented.
In support of the action it was, on the other hand, pleaded;—
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1. The clauses of the lease applicable to the crops in question, are equally applicable to a removal after insolvency or bankruptcy, whether that removal be at the first term of Whitsunday, or Martinmas thereafter.
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2. If the removal had been at the term of Whitsunday, when the whole of the white crop was sown, the landlord would have been entitled to enter to the fallow or turnip land,...
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Dollar Land (Cumbernauld) Ltd (Original Appellants and Cross-Respondents) v C.I.N. Properties Ltd (Original Respondents and Cross-Appellants) (Scotland)
...rid of an unsatisfactory tenant, but which did not exclude a subsequent claim by the tenant for unjust enrichment. In Moncreiff v. Hay (1842) 5 D. 249 and Chalmer's Trustee v. Dick's Trustee 1909 S.C. 761 it was held, as a matter of construction of the respective irritancy clauses in the ag......