Scottish Court of Session Decisions

By trust conveyance, dated 5th June 1885, the Earl of Glasgow conveyed his whole estates to George Auldjo Jamieson and others as trustees for certain purposes.

On 24th August 1886 the trustees exposed for sale by public roup the lands of Thirdpart and others belonging to Lord Glasgow. The articles of roup provided—“ Tertio, The entry of the purchaser to the said lands and others shall be at the term of Martinmas 1886, and the purchaser shall have right to the rents to become due for the possession from and after that term, the exposers having right to the rents due for the possession prior to that term, notwithstanding the dates at which the same may be conventionally payable; and the price shall be payable to the exposers by the person preferred to the purchase at the said term of Martinmas 1886, and shall bear interest at the rate of 5 per centum per annum from and after the said term during the not-payment.” The lands were purchased at the sale by John Clark, Largs, at the price of £12,500.

By the disposition which followed upon the sale the term of entry was Martinmas 1886. It contained this clause of assignation of rents—“And we, as trustees foresaid … assign the rents, feu-duties, and casualties of superiority due and payable from and after the said term of entry.”

The lands consisted of two farms, both arable. At Whitsunday 1887 £122, 10s. was due and payable as rent for one of them, and £72, 10s. for the other—in all £195. These rents were payable for the possession prior to Martinmas 1886. Clark claimed these rents, and obtained payment thereof from the tenants.

Lord Glasgow's trustees raised the present action against Clark to obtain repayment of the £195, pleading “(2) the rents of the said farms due and paid at Whitsunday 1887 being for the

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possession of the said farms prior to the defender's entry, he has no right thereto.”

The defender pleaded—“(1) The rents in question having become due and payable subsequent to the term of the defender's entry, he was entitled to uplift the same. (2) In respect that by the terms of the conveyance in his favour, the said rents belonged to the defender, he is entitled to absolvitor, with expenses.”

On 4th July 1888 the Lord Ordinary ( Trayner) sustained the defences and assoilzied the defenders.

“ Opinion.—The defender bought the lands of Thirdpart from the pursuers, and he is now infeft therein. By the disposition in favour of the defender the term of entry was declared to be Martinmas 1886, and the clause assigning the rents was expressed thus:—‘And we, as trustees foresaid … assign the rents, feu-duties, and casualties of superiority due and payable from and after the said term of entry.’

The rents uplifted by the defender, and which the pursuers seek by this action to recover from him, were due and payable after Martinmas 1886, and therefore, prima facie, were assigned to the defender by the conveyance in his favour. But the pursuers maintain that the said rents nevertheless belong to them, because by the articles of roup under which the defender purchased it was stipulated that the purchaser should have right to the rents to become due for the possession from and after the term of entry, and the rents in question, although due and payable after Martinmas 1886, were for the possession prior to that date.

If the rights of parties were to be held as fixed by the articles of roup I should find for the pursuers. But I am of opinion that the rights of parties are to be determined by the terms of the disposition granted by the pursuers to the defender, that being the ultimate expression of their contract, which cannot be modified or altered by previous writings, negotiations, or conditions of sale.

Further, by the Statute 31 and 32 Vict. cap. 101, section 8, it is provided that an assignation of rents, in the form there given, shall, ‘unless specially qualified, be held to import an assignation to the rents to become due for the possession following the term of entry.’ The pursuers, therefore, by using the statutory form, ‘We assign the rents,’ would have limited the defender's right to that which was expressed in the articles of roup. Instead of doing so, however, the pursuers ‘specially qualified’ the assignation of rents by adding ‘due and payable from and after the said term of entry.’ I must suppose that this qualification was intended to have some meaning and effect, otherwise it would not have been expressed, and the only meaning I can give to the qualification is its natural and ordinary meaning as contended for by the defender.”

The pursuers reclaimed.

A separate question arose as to the shootings upon the estate. The shootings were let by Lord Glasgow's trustees, at a rent of £100, to a tenant from 1st August 1886 to 31st March 1887. On 21st February 1887 Lord Glasgow's trustees uplifted this rent from the tenants. Clark, as proprietor of the lands, sued Lord Glasgow's trustees for payment of the £100 rent thus uplifted. He maintained that the term of entry to the lands being Martinmas 1886, he had right under the clause of assignation of rents above quoted to the shooting rent because it was payable after his entry. The defenders averred that the shooting rent fell to be apportioned between them and the pursuer, the portion from 1st August to 11th November 1886 effeiring to them, and the remainder to the pursuer.

The defenders pleaded—“(1) The pursuer is only entitled to the portion of the said rents due for the possession of the said lands from and after the term of Martinmas 1886. (2) In terms of the contract between the parties and the provisions of the Apportionment Act 1870 (33 and 34 Vict. c. 35), the said rents fall to be apportioned between the pursuer and the defenders, and the latter are entitled to the proportion thereof effeiring to the period from 1st August to 11th November 1886.”

On 4th July 1888 the Lord Ordinary ( Trayner) decerned against the defenders in terms of the conclusions of the action.

“ Opinion.—The rents in question, which were for shootings over a portion of the lands of Thirdpart, were due and payable at 31st March 1887. I think they belonged to pursuer, being assigned to him by the conveyance granted in his favour by the defenders. I refer to the opinion expressed by me to-day in deciding the case Lord Glasgow's Trustees v. Clark.

The Apportionment Act referred to by the defenders has no bearing upon this case, which is one of contract.”

The defenders reclaimed, and argued—The Lord Ordinary had entirely misconstrued the meaning of the clause of assignation of rents. It had the same meaning as the short claim introduced by the Act of 1868, “I assign the rents.” This short form was not imperative and it did not follow, as the Lord Ordinary seemed to think, that because the exact language of that short claim was not adopted the parties must have intended thereby to give effect to some other arrangement. The purchaser was only entitled to the rents payable for possession after his entry, and what the disposition carried was an assignation to rents “due and payable from and after the said term of entry,” so by common law as well as by the disposition the purchaser could have no right to any rent, whatever might be the stipulated terms of payment, for possession prior to his entry at Martinmas 1886.— Penman v. Campbell, June 10, 1828, 6 S. 940. The important word was “due,” because though the rent might be “due” it might not be “payable” until a conventional term. The construction of this claim now contended for was a reasonable one and was borne out by the following cases— Stevenson v. Moncreiff, February 12, 1845, 7 D. 418; Sinclair v. Sinclair, December 1, 1847, 10 D. 190; Shand's Trustees v. Mackie, February 15, 1850, 12 D. 739; Murray's Trustees v. Jardine, May 31, 1865, 3 Macph. 845. As regarded the rents of the shootings it was payable on 31st March after the purchaser had obtained possession, but a portion of the £100 was rent due before the purchaser obtained possession and fell to Lord Glasgow's trustees. There ought to be apportionment—Apportionment Act 1870 (33 and 34 Vict., cap. 35), sec. 2; Maxwell's Trustees v. Scott, November 5, 1873, 1 R. 122.

Argued for Clark—The rents claimed belonged

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to the purchaser. The sellers had not availed themselves of the short form introduced by the Act of 1868, which if it had been adopted would have expressed the same meaning as that contained in the articles of roup. In construing the clause of assignation of rents it was not competent to look at the language of the articles of roup or to refer to the communings of parties. The rents in question were “payable” after the purchaser obtained possession, and by the terms of the disposition they fell to him. That was the intention of parties and was so expressed. The authorities cited by the other side were not applicable as they were all prior to the Act of 1868. With regard to the rent of the shootings, the legal term of payment and the term at which the rent was due were the same. The Apportionment Act was not applicable to a case like the present; the whole rent was due to the purchaser.

At advising—