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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Mackenzie v. Lord Lovat [1883] ScotLR 20_694 (21 June 1883)
URL: http://www.bailii.org/scot/cases/ScotCS/1883/20SLR0694.html
Cite as: [1883] ScotLR 20_694, [1883] SLR 20_694
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SCOTTISH_SLR_Court_of_Session
Page: 691↓
Court of Session Inner House Second Division.
[Sheriff of Inverness-shire.
v.
Facts:
The stock and crop on a farm were sequestrated by the landlord for arrears of rent, and in security for rent current. By an arrangement between the landlord and tenant the latter sold the sequestrated effects on the farm by public roup, and accounted to the landlord for the price. At the sale a stack of hay was bona fide, and in ignorance of the sequestration, bought by a third party, who was prevented from taking possession of it by the landlord. In an action by the purchaser against the landlord for the value of the hay, or for damages for its wrongful detention — held that the landlord was not entitled, in virtue of the sequestration or otherwise, to prevent delivery; that the buyer was entitled to be compensated for the damage he had sustained, and that it was not a good answer to his claim that he might have appeared in the process of sequestration and claimed the hay as his property.
Donald Fraser was tenant of the farm of Platchaig, in the parish of Kilmorack, Inverness-shire, belonging
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to Lord Lovat, on a fifteen years' lease, terminating at Whitsunday 1883. Fraser having fallen into arrears in his rent, Lord Lovat in 1879 applied to the Sheriff for sequestration of the cattle, sheep, and other bestial, and also the growing crop and other moveables on the farm, and for warrant to inventory and sell the same for payment to him of the rent for the year 1878-79 and crop 1879, then past due, and also in security and for payment of the rent to become due for the then current year 1879–80 and crop 1880. On 14th August 1879 the Sheriff sequestrated and granted warrant to inventory and secure as craved. An inventory was taken of the sequestrated effects, in which was included a haystack standing in a field on the farm, estimated as weighing about 700 stone, and the sequestration was reported to the Sheriff-Clerk on 29th October of that year. Nothing further was done in the sequestration for the lapse of a year and seven months, when, having fallen asleep, it was wakened by interlocutor dated 26th March 1881. In May 1880 Donald Fraser, by arrangement with the landlord, as after mentioned, held a displenishing sale by public roup, duly advertised previously in two local newspapers, of the effects on the farm. The haystack in question was not sold on this occasion, there being no bid for it, but on a subsequent one (also previously advertised) on the 21st of July following. Donald Mackenzie, merchant at Muir of Ord, attended this latter sale, and bought the stack for £17, for which he granted a bill, which he met when due. Fraser renounced his lease in March 1880, and quitted the farm before the sale of the haystack in July.
In 1881 Donald Mackenzie raised the present action against Lord Lovat in the Sheriff Court at Inverness for payment of £35. He averred that having gone sometime after the sale with a servant and a cart to Platchaig to remove the hay he found the stack enclosed in a fence, and was prevented from removing it by the new tenant of the farm, who stated to him that he did so on the instructions of the defender or his factor; that he then applied to the latter for permission to remove the stack, which was refused. He also averred that no care had since been taken to preserve the hay, with the result that it had suffered considerable damage, and that he had consequently been compelled to purchase other hay to replace it at the rate of 1s. per stone. The sum of £35 sued for was therefore the value of the stack at 1s. per stone, or the measure of loss, injury, and damage sustained by him in consequence of its illegal detention by the landlord. He also averred that he knew nothing of Donald Fraser's sequestration.
He pleaded—“The defender having, by himself or his servants or agents, for whom he is responsible, illegally and unwarrantably taken possession of and refused to deliver up the haystack in question belonging to the pursuer, is bound to pay the value thereof; or otherwise, is liable in damages.”
The defender's pleas are stated at the outset of Lord M'Laren's opinion.
The Sheriff-Substitute ( Blair) allowed a proof. It was proved that the pursuer had been prevented from removing the stack because Fraser had not accounted to the landlord for the bill for its price, and also that the stack, along with the other effects on the farm, had been exposed to sale by Fraser in virtue of an arrangement between the tenant and the factor to the effect that the former should himself realise the stock and crop sequestrated and account to the latter for the proceeds. Mr Peter's account of the arrangement was as follows:—“I saw Donald Fraser very frequently after the sequestration. (Q) Had you a conversation with him soon after the sequestration of his stock in regard to the realisation of his stock and crop?—(A) I have no special recollection of such a conversation. (Q) Did you tell Donald Fraser that the crop and the stock which were sequestrated in 1879 might be realised in the usual way?—(A) I told him that so long as I saw that he was accounting to me for what he sold of the sequestrated effects I would not interfere in the way of applying for a warrant of sale. (Q) Did you use these words?—(A) I did. (Q) Did you use the words—‘Warrant of sale?—(A) I cannot swear that I did. (Q) Did you say a word to him about accounting to you for the proceeds?—(A) Most assuredly; and I was making frequent visits to the farm to see that nothing was disappearing from the farm without its being accounted for. (Q) But so long as he accounted to you for the proceeds of his sales you did not interfere with his realisation of his sequestrated effects?—(A) No; so long as I saw he was accounting for the effects sequestrated (Q) Have you been having sequestrations every year against Fraser?—(A) Very nearly. (Q) For how long?—(A) Five or six years. (Q) And during all that time you allowed him to realise himself?—(A) We have. (Q) Selling the crop as he thought proper, and disposing of the stock also?—(A) Yes; selling the crop. (Q) But up to this time you never interfered with the people who bought from him?—(A) No…. Our practice is always thus:—We have a great reluctance to use sequestration against anyone, and Lord Lovat would rather forego the rent than do it, and when we do use sequestration we are still unwilling to proceed to sell, and as a rule we receive the parties who have been sequestrated, and endeavour to make arrangements with them that they shall account faithfully to me for that which is sequestrated, and in that way save expenses.” Mr Peter stated also that when the pursuer called one day at his office he refused to allow him to remove the haystack on the ground that it was hypothecated for Fraser's rent, and that he instructed the forester to put a fence round it. On this point the pursuer deponed—‘‘Sometime after the sale I went for the hay, and I found the stack of hay enclosed within a paling. (Q) What happened after that?—(A) We thought that it was put on by the tenant to keep his cattle from it, and we commenced to load the cart, and when we were near through of loading the cart the tenant came and said he was sorry he did not see us before we commenced to load the cart; that he got word from the factor (Mr Peter) that if he would see us coming for the hay to tell us that we would not get the hay. Then we stopped loading.”
The Sheriff-Substitute found that the pursuer had failed to prove facts and circumstances inferring liability on the part of the defender to pay him the sum sued for, and refused the prayer of the petition.
“ Note.—Donald Fraser, the tenant of the farm
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of Platchaig, belonging in property to Lord Lovat, fell into arrears of rent, for which he was sequestrated. The warrant of sequestration was executed within the proper time, but no warrant of sale of the sequestrated effects was applied for. Among the articles sequestrated was a stack of hay, which the tenant sold to the pursuer, and received his bill for £17. The tenant did not, however, deliver the bill to Lord Lovat, but applied the proceeds to his own use. The sequestration has not been withdrawn, but in my opinion the landlord has lost the right which the sequestration conferred by undue delay or mora in applying for the warrant of sale—Bell's Prin., 7th ed. ii. 34; and the case of Macleod v. Thomson's Creditors, Hume 226. In pursuing this action, which is for payment of £35, as the value of the haystack which the defender is alleged to have prevented the pursuer from obtaining delivery, or alternatively for damages, I am of opinion that the pursuer has not taken the proper course to vindicate his right to the haystack. The proper course for him is to enter appearance in the depending sequestration process, and not unnecessarily to multiply proceedings— Lindsay v. The Earl of Wemyss, 10 Macph. 708. By appearing in that process of sequestration the pursuer can state all objections thereto, and can fully vindicate his right to the haystack. As stated by Lord President M'Neill in the case of M'Kechnie v. The Duke of Montrose, 15 D. 626, ‘The process of sequestration, though a process of securing the landlord's rights, is also a process of repetition, for in it a person may claim to have articles withdrawn from the sequestration.' “On these circumstances the pleas of the defender must be sustained and the prayer of the petition refused.”
The pursuer appealed to the Sheriff (Ivory), who dismissed the appeal.
“ Note.—The Sheriff concurs in the judgment of the Sheriff-Substitute.”
The pursuer appealed to the Court of Session, and argued—If the grounds of the Sheriff-Substitute's judgment were right, he should not have allowed a proof, for he had decided against the pursuer, not on the merits, but on the question of the propriety of the remedy sought by him. There was no rule of law which limited the remedy of a bona fide purchaser to compearing in the sequestration process of the seller and claiming his property there. And if there were it could not apply here, through the negligence of the defender in allowing the sequestration to fall asleep. The pursuer was not bound to wait till the defender wakened his process. The cases quoted by the Sheriff-Substitute therefore did not meet the present case.
Authorities— M'Kidd v. Manson, May 18, 1882, 9 R. 790; 16 and 17 Vict. c. 80, sec. 15; 39 and 40 Vict. c. 70, secs. 48 and 49.
The defender replied—The pursuer's proper and only remedy was to have appeared in the sequestration when it was wakened and claimed his alleged property. Having foregone that, no other course was now open to him but to remove the hypothecation imposed by the landlord.
Authorities—Cases of Lindsay and M'Kechnie, supra cit.; Hay v. Keith, 1623, M. 6188; Laming—ton y. Oswald, 1688, M. 6224.
At advising the opinion of the Court was delivered by
A proof was taken in the Sheriff Court, and by the interlocutor of the Sheriff-Substitute appealed from it is found that the pursuer has failed to prove facts and circumstances inferring liability. But in the Sheriff-Substitute's note the judgment is not rested upon the failure of the pursuer's case on the facts, but on the view indicated in the the defender's first plea-in-law. I believe your Lordships are all of opinion that the judgment of the Sheriff Court upon this point cannot be sustained. If the pursuer was prevented from obtaining possession of his property, which he had purchased and paid for, by the wrongful act of the landlord in the assertion of a right which did not exist, he is entitled to be compensated for the damage he has sustained, and it is not a good answer to his claim that he might have appeared in the process of sequestration and claimed the hay as his property.
Your Lordships have then to consider (1) whether the defender Lord Lovat had a right to the stack of hay which he could enforce in a question with the pursuer; and (2) whether the defender through his factor, or others for whom he is responsible, did via facti detain the hay, to the injury and damage of the pursuer.
[His Lordship here narrated the proceedings in the sequestration as already detailed.]
From the evidence of Mr Peter, Lord Lovat's factor, however, it appears that an arrangement was made between Mr Peter and Fraser, the tenant, that Fraser should realise the sequestrated stock and crop, and should account to the factor for the proceeds. From the same evidence it appears that this arrangement was made in pursuance of a system of management which had existed for at least five or six years, under which the form of sequestration was regularly used against the tenant, while the tenant was left in the undisturbed possession of the sequestrated effects, with authority to dispose of stock and crop as he should think proper, the proceeds having to be accounted for sometimes by the tenant and sometimes by the purchaser. Mr Peter explains in a subsequent part of his examination, that where sequestration was used against other tenants, he as a rule endeavoured to make arrangements with them such as were made with Fraser; and in Fraser's case it does not appear that under this peculiar system of administration the tenant's effects had in any instance ever been brought to a judicial sale. It is thus admitted, or clearly proved, that the sequestration in question was not used for the
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On the second question the facts were that Fraser vacated the farm after the sale and before delivery of the hay. Mr Peter informed the pursuer that he “would not allow him to remove the hay seeing it was hypothecated.” Mr Peter instructed Lawson, the new tenant, not to allow the hay to be removed, and also told the forester to put a fence round it. When the pursuer went i for the hay Lawson said he had got word from the factor “to tell him that he would not get the hay.” Then the pursuer adds, “he stopped loading.”
The defender contends in all this he did nothing more than assert a legal claim. I think he did more—he was in possession through his tenant Lawson, and Lawson by his instructions refused to give possession. If the pursuer, after what occurred, had attempted to take the hay by force, I think he would have put himself in the wrong, because he had no right to be on Lawson's farm for that purpose after he had been ordered to cease loading. I am therefore of opinion that the hay was detained by the defender—wrongfully detained—because the defender was bound to allow delivery to be taken by the person to whom Fraser had sold with his authority. The sum concluded for is £35, but there is no evidence that hay had risen in value between July and November, when delivery was refused. The damage must therefore be limited to £17, the price of the stack with interest from the date of citation, as prayed for.
The
The Court pronounced the following interlocutor
“The Lords find (1) that the stack of hay in question was sold to the pursuer by Donald Fraser, the tenant of the farm of Platchaig, with consent of the defender; (2) that the defender prevented delivery of the said stack to the pursuer when delivery was required; (3) that the defender having consented to the sale, was not entitled, by reason of the sequestration previously used, or on any other ground alleged, to prevent delivery; (4) That the want of the hay purchased by the pursuer was a cause of loss and damage to him, and that £17, being the price, with interest as concluded for, is a sum at which the damage may reasonably be fixed: Therefore sustain the appeal; recal the interlocutors of the Sheriff-Substitute appealed against; ordain the defender to make payment to the pursuer of the said sum of £17 with interest,” &c.
Counsel for Pursuer (Appellant)— Campbell Smith— Rhind. Agent— William Officer, S.S.C.
Counsel for Defender (Respondent)— Mackintosh— Guthrie. Agents— John Clerk Brodie & Sons, W.S,