Process against Sub-Tacksmen and Intromitters, with Subjects hypothecated. - What if caution or payment has been offered by the Intromitters, or if sufficiency has been left to answer the rent.
Andrew Blane v. David Morison, and Others
Date: 8 March 1785 Case No. No 38.
A landlord having granted to a tenant power to subset, found to have no hypothec over the effects of the subtenants. But there were particular circumstances in the case.
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David Morison and others possessed the estate of Kerse under Ronald Chalmers, the tenant, who had powers to subset; and to him for many years they paid their rents, without any challenge from the landlord.
Their tack-duties for the year 1782, which were due at Martinmas, had in this manner been paid to the principal tacksman before 23d January 1783, at which period, Mr Blane, the factor on this estate, applied to the Sheriff-depute for a sequestration of their crop and stocking, in security and payment of the hypothec-rent due to the landlord.
The question thence arising having been brought into the Court of Session by bill of advocation, Mr Blane, the factor,
Pleaded; The fruits or yearly produce of a farm, as well as the effects which have been brought into it, are viewed by the law of Scotland, as the property of the landlord, and unalienable, until the stipulated rent has been paid to him. He is accordingly provided with an action, while these are extant, for converting them into money for his payment, to the exclusion of every other person; and when they are no longer to be found, he is warranted to pursue the intromitters, for their value; Kame's Law Tracts, 4. p. 151, 152; Erskine, b. 2. tit. 6. § 56; Voet, In quibus causis pignus tacite contrahitur; Dict. voce Hypothec; Durie, 5th March 1630, Fowler contra Cant, No 25. p. 6219.
Nor are sub-tenants exempted from this general rule. Where, indeed, a landlord has signed as consenter to the sub-lease, or where he has accepted from the sub-tacksman the rents specified in it, there might be some reason for holding effectual against him the performance of an agreement he has so explicitly recognised; and to such cases any authorities which can be quoted for the subtenants are alone applicable. But a mere liberty to subset, whether particularly expressed, or implied from the endurance of the principal lease, cannot be attended with the same consequences. A landlord is thereby debarred from insisting on the personal residence of the principal tacksman; but in every other respect, the rights belonging to him, and his preference in virtue of the hypothec, remain in their former extent.
Hence it is, that a sub-tacksman is not personally bound to the landlord, which would be a necessary consequence of supposing an implied agreement between them; Stair, b. 2. tit. 9. § 2. In the form of removing too, prescribed by the act of sederunt, the summoning of subtenants is not required, 14th December 1756, § 3; from which it is plain, that a regular payment of rent to the principal tacksman will not secure them from an irritancy incurred by him, ob non solutum canonem. So also, where a farm has been divided among many sub-tacksmen, the landlord may attach the fruits of any one field for the tack-duties of the whole, Fountainhall, 1700, Salton contra Club, No 13. p 1821; a determination, which seems quite decisive of the present question, since no payment by a sub-tenant, of the rent corresponding to his possession, ought to be more effectual than what is made in virtue of legal diligence to the landlord himself.
Answered for the sub-tenants; The right of hypothec may be limited, not only by express covenant, but also in consequence of the implied will of the landlord; Erskine, b. 2. tit. 6. § 63; Dict. voce Hypothec; Edgar, November and December 1724, Brown contra Sir John Sinclair, No 10. p. 6204. Such a restriction then must unavoidably take place, when, by giving authority to subset, the landlord has delegated the same powers to the tenant for recovery of the subtack-duties, as belong to himself with regard to the rents stipulated in the principal lease. After the sub-tenants have duly delivered their rents to the person empowered by him, he surely cannot be heard to insist, that they shall be compelled to make a second payment to himself. No instance accordingly can be given, in which, for rents due by a tenant having special powers to subset, the effects of a sub-tacksman who had paid his promised tack-duties, have been found attachable by the landlord. And the opinions of our lawyers strongly support the contrary doctrine Erskine, b. 2. tit. 6. § 34; Bankton, b. 2. tit. 9. § 2. Par. 17; 5th February 1667, Lady Traquair contra Cranston and Howatson, No 28. p. 6221., and voce Tack.
The situation of subtenants would otherwise be intolerably grievous. The crops reared by each, so long as they were unconsumed, would remain impignorated for the rents of the whole farm, however extensive. And the subtenant might afterwards be sued as an intromitter, thus being rendered subsidiarie liable, during 40 years, not only for the principal tenant, but also for the other sub-tacksman, against whom, at the same time, he is not, by any form of law hitherto known, provided with the means of securing his relief. Nor could any hardship accrue to landlords from a more equitable construction of the agreement in question. For although payments by sub-tenants, when made without any previous interpellation on the part of the landlord, were to be sustained, it would not follow that his legal preference was altogether derelinquished, or that, by anticipating the payment of the sub-rents, by stipulating elusory tack-duties, or by any other similar device, it could be unreasonably diminished.
It was farther contended for several of the sub-tenants, That the sums paid by them had been delivered by the principal tacksman to the factor; from which they derived an additional argument, why the Landlord's hypothec with respect to them should be considered as discharged.
The Lord Ordinary's interlocutor was in these terms:
“Finds, That the heritor's real right and security of hypothec for his principal tack-duty or rent, so long as it continued in force, did extend to, and affect the whole crop and stocking, upon all and every part of the land let by him in the principal tack thereof, whether such crop or stocking belonged to the principal tacksman himself, or to the defenders and others his sub-tenants, and was neither excluded nor restricted in its effect by the principal tack's bearing a power or licence to the tacksman to subset the said lands: Finds, That it was not necessary, for preserving the said heritor's hypothec, that he should, either before or after the term, interpel the defenders, whom he had not accepted of as his tenants, from paying their sub-rents to the principal tacksman under whom they possessed; but that the said sub-tenants, when making such payments, did it at the hazard of their crop and stocking being still affected by the heritor's legal right of hypothec, in case the principal tacksman should fail to pay up to him the whole of the principal tack-duty, for security of which that hypothec was still subsisting; and that the defenders allegation, that the sums of money paid by them, to account of the sub-rents soon after Martinmas 1782, were paid over by him to the pursuer, in part of the principal tack-duty due at the said term, is neither instructed, nor relevant for supporting their objection to the sequestration: And therefore finds, that as the pursuer obtained a sequestration of the whole crop and stocking on the lands contained in the principal tack, within less than three months after the said term of Martinmas 1782, when the principal tack-duty in question fell due, the intermediate payments made by the defenders to the principal tacksman, or discharges of the sub-rents granted by him to them, could be no bar to the said sequestration and that the sequestration must still subsist accordingly, &c.”
The sub-tenants having brought the question under review of the Court, by a reclaiming petition, which was followed with answers, a hearing was appointed. Memorials were afterwards given in for the parties, upon advising which the Lords altered the Lord Ordinary's judgment; thus sustaining the objections urged in behalf of the subtenants, to the awarding of the sequestration.
There was a great diversity of opinion among the Judges; and it was observed on the Bench, That this decision was not to be viewed as determining in general, that the landlord's hypothec, when subsetting was not prohibited, could be excluded in consequence of payments made, after the legal term, to the principal lessee. The special power to subset, which here occurred, and the long and uninterrupted use of payment by the sub-tenants, seemed to have considerable weight with some of the Judges.
Lord Ordinary, Eskgrove.Act. Lord Advocate, Geo. Fergusson.Alt. Blair, Corbet, W. Miller.Clerk, Home.
Fol. Dic. v. 3. p. 294. Fac. Col. No 206. p. 321.
