Scottish Court of Session Decisions

The Hypothec Abolition (Scotland) Act, 1880 (43 Vict. cap. 12), sec. 1, provides that from and after 11th November 1881 “the landlord's right of hypothec for the rent of land, including the rent of any building thereon, exceeding two acres in extent, let for agriculture or pasture, shall cease and determine.”

By a memorandum of lease, dated 22d January 1887, Andrew Clark, farmer, High Rossil, near Glasgow, let to Finlay Keir and Walter Keir, dairymen, residing at Colston House, Bishopbriggs, “the dwelling-house of Colston, with byres, milk-house, three stalls in stable, and garden, for one year, from Whitsunday 1887 to Whitsunday 1888, at the rent of £30 sterling, payable at Martinmas, also three grass fields, namely, West Hill, Barn Park, and Todhole Park, 25 acres, till Martinmas, at the rent of £70 sterling, payable at Martinmas.” The buildings were not upon the grass fields.

The rent was not paid at Martinmas 1887, and upon 12th November 1887 Clark presented a petition in the Sheriff Court at Glasgow, in which he prayed the Court “(first) to sequestrate and to grant warrant to officers of Court to inventory and secure the whole fittings, stock, furniture, goods, and other effects, so far as subject to the pursuer's hypothec, which are or have been in the dwelling-house of Colston, with byres, milk-house, and three stalls of stable, near Bishopbriggs, Glasgow, occupied by the defenders

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since the term of Whitsunday 1887, in security and for payment to the pursuer of the sum of £30 sterling, being the year's rent thereof, from Whitsunday 1887 to Whitsunday 1888, payable at the term of Martinmas 1887; and (second) to grant a decree against the defenders, jointly and severally, for the sum of £70 as the rent of the lands.”

The defenders pleaded—“The bestial are not now liable to the law of hypothec, nor the subjects in any buildings on the farm.”

On 10th December 1887 the Sheriff-Substitute ( Erskine Murray) pronounced this interlocutor and note—“Finds (1) that the pursuer Clark let to the defenders Keir, in January last, the dwelling-house of Colston with byres, milk-house, garden, &c., for a year, from Whitsunday 1887 to Whitsunday 1888, at the rent of £30, payable at Martinmas, and three grass fields till Martinmas, at the rent of £70, payable at Martinmas: Finds (2) that both rents remaining unpaid, pursuer now seeks to sequestrate for the £30, and to get a decree for the £70: Finds in law that pursuer is entitled to succeed in both points.” Warrant was then granted to sell as many of the effects sequestrated as would pay the year's rent of £30.

“ Note.—Under the Hypothec Abolition Act 1880 agricultural hypotheo was abolished. If therefore this had been the case of a single rent of £100 for the house and fields as for a dairy farm no hypothec would have existed, nor would sequestration have been competent. But here the two have been separated, a separate rent being put upon the house and the fields; and further, the lease of the house is for a year, while that of the fields terminates at Martinmas. The two sets are therefore quite distinguishable. The pursuer is therefore entitled to sequestrate the effects in the dwelling-house and its appurtenances as in the case of an ordinary dwelling-house. A nice question may arise, however, if he sequestrates the cattle. Had it not been for the Act of 1880, if the house and the fields had been held from different landlords, the landlord of the fields rather than that of the house would have probably been held entitled to sequestrate the cattle. As it is, if he sequestrates them for the rent of his house he may perhaps be held to have been trying to extend his hypothec for the rent of his dwelling-house over agricultural subjects in a manner which the Act of 1880 renders incompetent. On this point the Sheriff-Substitute reserves his opinion. But this does not affect the pursuer's right to sequestrate the effects in the dwelling-house, &c., ‘so far as subject to the pursuer's hypothec,’ which is all that he asks.”

On appeal the Sheriff ( Berry) on 7th January 1888 adhered.

“ Note.—I think with the Sheriff-Substitute that the pursuer is entitled to the remedy of sequestration for the rent due at Martinmas of the house and buildings connected therewith. If there had been one letting of the house and fields the case would have fallen under the provisions of the Hypothec Abolition Act of 1880, and no right of hypothec would have existed. Here, however, although no doubt in one document we have separate lettings for the house and buildings on the one hand, and for the fields on the other; separate rents are payable for these two sets of subjects, and there are separate periods of duration, the lease of the house and buildings extending to Whitsunday 1888, while that of the fields expired at Martinmas last; and when this petition for sequestration was brought the lease of the fields was at an end. In these circumstances I think that the case in as far as regards the house and buildings does not fall within the operation of the Act of 1880, and that the pursuer is entitled to sequestration for the rent of the house and buildings. The Sheriff-Substitute in the latter part of his note says that he abstains from expressing an opinion as to whether the cattle belonging to the defender are liable to sequestration for the rent of the house and buildings. But it has been pointed out to me that the cattle are included in the inventory, and I have been asked to express an opinion on the point. I think that under the head of invecta et illata the cattle are liable to sequestration as being property of the tenant, in the byres or stables belonging to the landlord, for the rent of which he seeks sequestration.”

The defenders appealed to the Court of Session, and argued—This sequestration was incompetent. The lands and house with byres attached had been let as a pastoral subject, and exceeded two acres in extent; therefore they fell under the provisions of the Hypothec Abolition Act 1880—Rankine on Leases, p. 327. The whole of the subjects had been let as one pastoral subject. The separation of rent in the lease was merely formal, and did not entitle the landlord to act as if the subjects had been let as two different subjects. In many agricultural leases there were separate ishes for the house and for the lands.

The respondent argued—The grass parks had been let as one subject for a rent of £70, and the house and byres at a rent of £30. There was a different ish for each of the subjects. These were really two separate transactions, and the Act of 1880 did not apply. The house and byres were not situated upon the lands, and that was necessary under the Act.

At advising—