Scottish Court of Session Decisions

Question as to the tenant's right to an away-going crop.

By minute of agreement dated 18th June 1852, Skinner, commissioner for Udny, of Udny and Dudwick, let to Alexander Esson and his heirs, “with reference to and under and in terms of the burdens, conditions, and others contained in the regulations established on the estate of Udny, recorded in the Sheriff-court Books of Aberdeen 25th May 1850, all and whole that croft or possession, as at present possessed by him, on the hill of South Fardine, on the estate of Udny, in the parish of Foveran, and that for nineteen years from and after the term of Whitsunday 1850, which, notwithstanding the date hereof, is hereby declared to have been the term of entry to the premises, the crop of the year 1850 being the first grain crop under this tack.”

The regulations contained this clause:—“At whatever term the tenant may have entered, he shall remove as at Whitsunday of the last year of the lease, being bound to give the landlord or incoming tenant access to the garden or yard at

Page: 577↓

Candlemas preceding said term, in order that the same may be laboured and sown.”

On 2d April 1868 Udny raised an action of removing against Esson in the Sheriff-court of Aberdeenshire, pleading that “the tack under which the defender possesses being for nineteen years or crops, commencing with that of 1850, his tenure under it expires with the crop or year of 1868, and he is, in terms thereof, bound to remove at Whitsunday of that year.”

The Sheriff-substitute (Thomson) found “that, in terms of the minute of agreement, No. 12 of process, the possession in question was let to the defender on the terms following—viz., for nineteen years from and after the term of Whitsunday 1850—‘ the crop of the year 1850 being the first grain crop under the tack,’ and the first half-yearly payment of rent being due at Martinmas 1850: That, under and in terms of the regulations and conditions of the estate, article 9, section 1, referred to in the said minute of agreement, the defender was bound to remove as at Whitsunday of the last year of the lease: Finds that the possession in question at the time it was let consisted simply of a portion of land without houses or garden: Finds, as matter of law, that the defender was entitled under the said tack to reap nineteen crops only: That his first crop was that ia the ground at Whitsunday 1850, and his last crop that in the ground at Whitsunday 1868: Finds that Whitsunday 1868 is the ‘ Whitsunday of the last year of the lease,’ and that, except to the effect of reaping the crop of 1868, the defender was bound to remove from the farm at Whitsunday 1868: Therefore repels the defences: Decerns removing against the defender, in terms of the conclusions of the libel.”

On appeal, the Sheriff (Jameson) pronounced this interlocutor:—Recals the interlocutor appealed from: Finds that, in terms of the minute of agreement, No. 8 of process, the commissioner for the late John Augustus Udny let to the defender's predecessors the croft or possession in question for the period of nineteen years from and after the term of Whitsunday 1850: Finds that the pursuer is not entitled to remove the defender from the said possession until that period expires —viz., at the term of Whitsunday 1869, therefore dismisses the action, and decerns: Finds the defender entitled to expenses of process.

“ Note.—The minute of agreement contains this declaration—‘ The crop of the year 1850 being the first grain crop under this tack ’—and it is this clause which has given rise to any uncertainty about the rights of parties. But although this provision may make it questionable whether the defender shall be entitled to an away-going crop, there is no ambiguity regarding the sense of the leading provision in the contract, which fixes the endurance at nineteen years. The defender cannot be removed from the subjects let until that period expire. The action was therefore premature.”

The pursuer appealed.

Fraser and Crichton for appellant.

Clark and Keir for respondent.

The Court adhered to the judgment of the Sheriff, and dismissed the appeal.