Scottish Court of Session Decisions

You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Appeal - Paton v. Turnbull [1875] ScotLR 12_383 (11 March 1875)
URL: http://www.bailii.org/scot/cases/ScotCS/1875/12SLR0383.html
Cite as: [1875] ScotLR 12_383, [1875] SLR 12_383

[New search] [Contents list] [Printable PDF version] [Help]

SCOTTISH_SLR_Court_of_Session

Page: 383↓

Court of Session Inner House Second Division.

Thursday, March 11. 1875.

12 SLR 383

Appeal—Paton

v.

Turnbull.

Subject_1Lease, constitution of
Subject_2Liability for Rent.

Facts:

Circumstances in which the owner of certain heritable subjects, having disponed them in security of debt, and continuing in possession after his sequestration, was held to have relinquished his right of ownership, and incurred liability as tenant of the premises.

Headnote:

This was an appeal from the Sheriff Court of Roxburghshire for Alexander Paton, merchant, Glasgow, in an action at his instance against John Turnbull, draper, Jedburgh. The summons concluded for payment of £82, 10s., being rent for a shop and other premises alleged to have been occupied by the defender as tenant of the pursuer. It appeared that the defender was originally owner of the subjects, but had conveyed them by an ex facie absolute disposition, dated 28th November 1868, to Barclay, Paton & Co., merchants, Glasgow, in whose right the pursuer now stood. The disposition was made in security of debts due by the defenders to Barclay, Paton & Co., and was qualified by a minute of agreement, by which, inter alia, power was conferred on the disponees in certain events to sell the subjects disponed, and to enter into possession thereof. The defender was sequestrated in April 1871, and the pursuer's firm ranked on his estate, and accepted a composition, but did not renounce the security held by them, and the trustee in the sequestration refused to interfere with the subjects disponed. The defenders continued in the occupation of the premises, but at Whitsunday 1871 the pursuer's firm made notarial intimation to the tenants on various parts of the subjects disponed, including the defender, that the rents would thereafter be payable to them. The rent thus due by the defender for the half year ending Martinmas 1871 was recovered by Barclay, Paton & Co., on a decree in absence pronounced against the defender for payment thereof, and several payments were made subsequently by the defender in name of rent, as the pursuer alleged. The pursuer accordingly maintained that the defender was tenant of the premises, and as such liable in payment of the rents thereof. The defender, on the other hand, denied that he had paid the sums referred to as rent, and contended that he had continued to possess the premises as owner, his ex facie absolute conveyance of the subjects being qualified by the minute of agreement.

The Sheriff-Substitute ( Russell) found that the facts set forth did not infer any contract of lease between the parties, or constitute the defender tenant of the subjects occupied by him, and the Sheriff ( Pattison) adhered to this judgment.

Appellant's authorities—Hunter on Landlord and Tenant, ii., 262, 263, 534.

Respondent's authorities— Rankin, 19th Nov 1868, 7 Macph. 126; Abbott, 25th May 1870, 8 Macph. 791; Bell's Conveyancing, vol. ii. pp. 1075 1076.

At advising—

Judgment:

Lord Justice-Clerk—I cannot agree with the judgment of the Sheriff. Looking to the decree in absence pronounced in the Sheriff-court for a sum which was sued for as rent due at Martinmas 1871, and to the payment following thereon, and the subsequent termly payments made by the defender, I cannot resist the conclusion that the relation of landlord and tenant was constituted between the pursuer, or the “firm whom he now represents, and the defender. These payments are alleged by the latter to have been made in satisfaction of debt, and not for rent at all. But no debt is specified, and, as the defender was a discharged bankrupt, no debt can have been due. I am therefore of opinion that the pursuer's claim for rent is well founded, and that this appeal should be sustained.

Page: 384↓

Lord Neaves—I have no fault to find with the proposition that a proprietor in possession of subjects disponed in security cannot always be removed at once by a heritable creditor, or that his possession as owner cannot at once be converted into possession as tenant. But there is no doubt that he may become tenant, and the question whether he has done so or not is one of facts and circumstances. In this case the defender took no objection to the notarial intimation that he was to be held as tenant, and he paid his rents, first under decree and then voluntarily. I am of opinion that by so doing he then accepted the position of tenant, and that he still is tenant. A party may insist on retaining his original possession as radical proprietor, but when once he becomes tenant he cannot go back.

Lords Ormidale and Gifford concurred.

The Court sustained the appeal, and gave decree in favour of the pursuer, with expenses.

Counsel:

Counsel for the Appellant— Dean of Faculty (Clark), and Mr Mair. Agents— Macnaughton & Finlay, W.S.

Counsel for the Respondent— Mr Macdonald and Mr Darling. Agent— Adam Shiell, S.S.C.
1875