Scottish Court of Session Decisions

The respondent is proprietor of the lands of Machan, in the parish of Dalserf and county of Lanark. For some years he had these lands in his natural possession, cultivating them himself as tenant. In 1866 he had prepared 12 acres for seed for a crop of wheat for 1867, 11 acres and 1 rood being summer fallow, and the remainder being in

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potatoes. He put manure and lime on the lands, and in September and October 1866 he sowed seed wheat. Shortly thereafter the appellant, Walker, offered to lease the lands, the offer containing this clause:—“And that I take the fences as they are, and to leave the fences in good order and the mill in going order at the end of the lease, also the farm as it now stands in its present state.” Marshall accepted the offer, and Walker entered into possession at Martinmas 1866. Marshall now sued Walker for £210, 17s. 2d., “being the value of lime, manure, seed, and labour, [expended by the pursuer in the cultivation of 12 acres and 3 roods of land, forming part of the lands of Machan, in the parish of Dalserf, for crop 1867, being the defender's first crop thereof as tenant under the pursuer, on a lease for 19 years as from Martinmas 1866, conform to account hereto annexed, the whole produce of which expenditure will be reaped by the defender, he having become tenant and entered into possession of the said lands when the pursuer had newly expended and applied the said lime, manure, seed, and labour thereon.” He alleged “the usage and custom of agriculturists is universal in the neighbourhood, that an ingoing tenant is liable in payment of summer fallow and lime, manure, seed, and labour applied thereto in the year previous to his entry, and of which the ingoing tenant reaps the whole and sole benefit.”

After a proof, and a report by a practical farmer as to the amount of liability, the Sheriff-substitute ( Veitch) decerned against the tenant.

The Sheriff ( Bell) adhered, adding this note:—”The Sheriff has had considerable difficulty with this case, which involves a question of some nicety, and of general importance. It seemed to be conceded on the part of the defender that, had he been dealing with an outgoing tenant instead of with the owner of the land, the rule laid down by Professor Bell (Principles, sec. 1263) would have been applicable, viz., that as the incoming tenant is lucratus by the fallow left by the outgoing tenant, the latter is in equity entitled to the value of the outlay of which the former reaps the benefit, and this independently of express stipulation. But the defender contends that the same principle does not apply where the question is between a landlord who had previously farmed the land himself and a party who comes in as a tenant under a nineteen years' lease. In such a case the landlord, it is argued, must be presumed to have inserted in the lease the whole conditions on which he lets the land, and has no right to make a demand beyond these conditions. By the interlocutor of 9th November 1867, a proof was allowed before farther answer of the pursuer's averment (Cond. art. 7), that the usage and custom of agriculturists is universal in the neighbourhood, that an ingoing tenant is liable in payment of such summer fallow and lime, manure, and labour applied thereto in the year previous to his entry, and of which the ingoing tenant reaps the whole and sole benefit. The result of the proof adduced, as has been found by the Sheriff-substitute, is to establish the entire accuracy of this averment, as between tenant and tenant. It is true that only one or two instances were known to the witnesses where the party ceding possession was the landlord himself, but as far as these instances went they confirmed the general custom, and bore out the opinion which the witnesses expressed, as agriculturists, that there was no solid room for distinction between the cases. The witness Andrew Smith, factor for the Earl of Home, and who has had large experience, depones—‘I know that the practice of the country is, that the incoming tenant pays the outgoing one for charges like the present. It is a general understood agreement, and is not put into the leases. The outgoing tenant has the claim against the landlord, not against the incoming tenant. It is usually settled between the tenants themselves without coming to the landlord. The fact of the landlord being in the natural possession of the land does not alter the rule in any case; at least, that I ever knew. I have had such cases in my experience.’ In like manner James Allan, a farmer of long standing, depones—‘I have no doubt that it makes no difference when the landlord is in the natural possession of the land, and that the incoming tenant would in that case be equally bound to pay him.' There is a great deal of similar testimony, and none which materially contradicts it. The defender, however, urges that his bargain with the pursuer is contained in the missives Nos. 8/1 and 8/2, that the annual rent payable by him is thus definitely fixed, and that to hold him liable to the present demand would be tantamount to making a serious addition to that rent. The answer to this seems to be, that the irregular missives referred to, which were entered into before possession of the farm was given at Martinmas 1866, fix only the annual rent payable for the ordinary use of the land as an agricultural subject, and do not in any way exclude the future adjustment of a claim for manure, lime, seed, and labour supplied by the pursuer according to the ordinary rule of cultivation tanquam bonus vir, and appropriated by the defender, no doubt with the pursuer's consent, but without being bestowed as a gift. Mr Hunter, in his work on the Law of Landlord and Tenant (vol. ii, page 473), states the established rule of law to be as follows:—‘Practical agriculturists consider summer fallow as an important part of good cultivation on clay soils, but as leaving ground in fallow causes loss to the outgoing tenant and gain to the incoming, it is equitable that the former should be recompensed. A claim made by an outgoing against an incoming tenant for the value of fallow ground left by him was sustained on the report of agriculturists. The right was held to exist independently of stipulation, and the ratio was that, as the outgoing tenant would have been entitled to take another crop instead of leaving fallow, an equivalent was exigible. This decision (Purves, 3d Sept. 1822) has been deemed to have fixed the law.’ At the conclusion of the missive offer No. 8/1, the defender undertakes to leave at the end of the lease ‘the farm as it now stands in its present state,’ but the Sheriff agrees with the Sheriff-substitute in thinking that these words cannot be construed as importing an obligation that there shall be then the same amount of fallow with the same value of labour and material expended upon it as were given over at Martinmas 1866. They seem rather to mean that there shall be no alteration or deterioration at the ish of the lease, in the general character of the farm. The witnesses, Andrew Smith and James Holmes, concur in deponing—‘There is no custom in this district of the incoming tenant getting fallow, &c., free, and leaving them in the same way to the next tenant at the end of his lease;’ and the witness James Allan, after reading the missive, depones—‘I don't think the terms of it would make any difference in the general rule of the district.’ The case of Alexander, January 22, 1847,

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which was much founded on by the defender, was in some respects a very special case, though that does not sufficiently appear from the rubric, and, even as it stood, was not a unanimous decision. One element which weighed with several of the Judges was, that all the parties interested, including the incoming tenant, had entered into a submission, in which it had been found that the landlord was bound to pay the outgoing tenant the expense of cultivating the summer fallow, and that, the question being thus settled, the landlord was not entitled to prevail in an action of relief against the incoming tenant, who had been absolved in the submission. In addition to this, the lease, which was full, regular, and complete, had been executed sometime after possession had been taken, and after the claim by the outgoing tenant had been made; and it was held by, at least, one or two of the majority, who altered the judgment of the Lord Ordinary and the Sheriff, that such a lease, by specifying the rent and all the other prestations, and failing to contain any stipulation for payment of the summer fallowing, barred the claim. Lord Medwyn, however, who was in the minority, considered that the matter of the summer fallow did not enter into the lease at all, not being in the contemplation of the parties at the time, and that it was still open for adjudication as a separate and independent question. If that could be maintained in Alexander's case, much more can it be so here, where no possession had been taken when the loose and informal missives were executed, and when, for aught that appears, parties had nothing more in view than adjusting the price to be paid for the use of the bare land. The defender subsequently got in addition the manure, lime, seed, and cultivation, none of which he could have claimed from the pursuer in virtue of the missives, and by appropriating the same to himself he saved the outlay which they would have cost him. Can it be fairly held that, although his contract never mentions them, he was nevertheless entitled to get all these things into the bargain? The lease of an urban tenement does not include the furniture which may be in the house, unless specially stipulated for; and in like manner, the lease of an agricultural subject does not include materials necessary for the cultivation of the land, or the seed out of which the tenant is to get his crop, unless such furnishings be expressly undertaken by the lessor.”

Walker appealed.

Solicitor-General ( Young, Q.C.) and Shand for appellant.

Clark and Gebbie for respondent.