Scottish Court of Session Decisions

William Reid, farmer, Longley, Kildrummy, Aberdeenshire, died on 28th December 1887 leaving a testament whereby he nominated certain parties as his executors. The testator's heir-at-law was his son William Reid. The lease of the farm was for nineteen years, and at the deceased's death there were nine years still to run. The executors of the deceased William Reid raised the present action in the Sheriff Court of Aberdeen against the heir-at-law, concluding, inter alia, for payment of the value of a threshing-machine taken possession of by the defender, and also for the value of the dung made on the farm, produced from the whole crop of 1887, and some straw from crop 1886. They pleaded that, in a question between heir and executor, the dung and threshing-mill being moveables they were entitled to payment therefor.

The defender claimed the threshing-mill and dung as heritable estate belonging to him as heir-at-law of his deceased father, and averred that they did not fall into executry.

The parties renounced probation.

The Sheriff-Substitute ( Brown) remitted to Mr Copland, auctioneer, Huntly, who reported as follows—“I have examined the threshing-mill on this farm. It is driven by water, with a start and alvh wheel. The two bushes of water-wheel shaft—one of them is supported upon a large stone built into the wall of the building, and fixed to it with two screw bolts; the other one is supported and fixed similar to a stone wall termed the outerhead outside the building. There are two large beams cross the house, and are built into the walls at each end for fixing and supporting the mill, which is done by the framing beams of the mill being tenoned and bolted to these beams with four sunk bolts—this is all the fixing and support of the mill. The two supports for the bushes of the roller pinions are fixed at one end to a cross piece fixed to mill framing and into stone wall. The other end of them are nailed to one of the large beams that support the mill. The fan below the mill stands upon the floor and is fixed to the mill.

“I consider the two large beams built into the walls part of the mill, as, owing to the construction of this mill it cannot be set up without them or similar beams built into the walls.

Note.—This mill is quite different from the ordinary construction of these mills. Instead of being set on stones in the floor with posts down the whole height of the framing, it is hung on beams built into the walls exclusively for its support. Such mills, in my experience, sometimes belong to the proprietor, and are given over at dead inventory to the tenant. In other cases the mill belongs to the outgoing tenant; it entirely rests upon the conditions of lease whether the incoming tenant is bound to take the outgoing tenant's mill at valuation at all. In many cases in my experience as an auctioneer the outgoing tenant has had to expose his mill to be sold by public roup along with his other effects, the incoming tenant not being at all bound to relieve the outgoing tenant of the mill on the farm.”

By interlocutor of 27th February 1889 the Sheriff-Substitute found that in a question between the executors and the heir of the deceased William Reid, the threshing-mill and dung were heritable estate, and fell to the defender as the heir and successor of the deceased in the estate of Longley.

Note.—The only matters raised in the record which have been under contention in the process are as to the threshing-mill and the dung, in regard to which both parties have renounced probation, being content to take a judgment on the statements and admissions contained in the documents referred to in the minute No. 7. I cannot gather from Mr Copland's report that the

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mill is other than an ordinary agricultural mill, and it seems to me that the question in regard to it is concluded by authority. That it is a fixture, although capable of being severed without material injury from the subject to which it is annexed, is, I think, perfectly clear, on the principles which were laid down in Fisher v. Dixon, 5 D. 775, 4 Bell's App. 286, and as such it passes to the owner of the heritable estate to which it is annexed. Subjects held under lease, form by the law of Scotland, heritable estate, and the case of Brand's Trustees, 3 R. (H. of L.) 16, has conclusively decided that in this matter there is no difference between an owner in perpetuity and a limited owner, and that in a question between the heir and executor, fixtures or things that have become partes soli pass with the subjects to the possession of the tenant's heir succeeding to the lease. It may be that in a question between landlord and tenant the threshing-mill might be held to fall within the tenant's right of severance, which the law in the interests of trade recognises and gives effect to as an exception to the ordinary rule that fixtures belong to the owner of the heritable subject in which they inhere, but as succinctly observed by Lord Selborne in the case of Brand, so long as the estate held under lease continues, there is no more reason for regarding the lessee's interest in the fixtures as separate from his interest in the soil than if he were owner in fee simple, and before actual severance the lessee's right passes to his successor in the estate, which by the law of Scotland is the heir, and not the executor. The exception to the rule, therefore, is not hujus loci, and on the same ground it would be irrelevant to consider what might be the state of matters as between an outgoing and incoming tenant.

A case, some years ago decided in this Court, which was referred to at the debate, seems to me to have no application, the question there arising under entirely different circumstances, and in particular not raising the principle as to the rights of parties in a subject made heritable by destination.

I feel more difficulty in the point raised as to the dung. No direct authority was quoted as specially affecting it, but in the end have come to be of opinion that it must be held to be governed by the general principle laid down in the cases above referred to. The parties have renounced probation without condescending in the statement of facts submitted as proof as to the provision in the lease regulating this matter, and have thus not put in evidence what I understand to be almost the universal rule that it must be consumed on the farm. But on the general principle that dung is by destination pars soli, and dedicated to the beneficial use of the heritable subject out of which it arises, I think the defender must prevail on this part of the case also in toto, for I see no reason for giving effect to the accidental circumstance that a portion of it had been actually carried to the ground with which it was to be immixed, while another portion was still left in the yard, or that a moiety was produced after the death of the deceased. The continuity of the inheritance has been preserved, and it seems to me, for the reasons above stated, that the heir must take every part of it which has not been realised and converted into executry estate. The defender having been successful in the only issue which has been contentious, I see no reason why the ordinary rule as to costs should not apply. In the negotiations before the parties came into Court the defender was less explicit in his position than he might have been, but an action was necessary to try the question which has been decided, and in that the defender has prevailed.”

The pursuer appealed to the Sheriff ( Guthrie Smith), who on 11th April 1889 recalled the Sheriff-Substitute's interlocutor.

The defender appealed to the Court of Session, and argued—(1) The threshing-mill fell to the defender on the authority of Brand's Trustees, December 19, 1874, 2 R. 258, and 3 R. (H. of L.) 16. Though that was the case of a mineral lease, yet the principle of that decision applied. Here the mill-house was part of the farm buildings, and it was dedicated to the machinery of the mill. All that was attached to the soil, and the appurtenances of the fixed machinery, passed to the heir—Hunter on Landlord and Tenant, vol. i. 313. With regard to the dung, the case of Murray's Trustees v. Graham, July 19, 1889, 26 S.L.R. 762, applied conclusively. This farm was to be cultivated according to the rules of good husbandry, and by the common law dung made on the farm inured to the land. During the currency of the lease the landlord was protected by the common law, and at the end of the lease he protected himself by stipulations in the lease— Pringle v. M'Murdo, June 30, 1796, M. 6575. If the tenant could not have sold the dung and removed it from the land, it was clear that his executors could not have any higher right than their author. Dung was heritable destinatione; it was the best example of a thing moveable in itself made heritable by destination — 2 Bell's Comm. 3; Bell's Prin. sec. 1375, 1261; Carnegy v. Scott, February 24, 1852, 14 D. 528; Stair, ii. 1, 2.

Argued for the respondents—The case was not ruled by Brand's Trustees, because the question there was one relating to a mineral lease, and it had no application to a lease of agricultural subjects. This threshing-mill was just an instrument of husbandry like a turnip-cutter— Hyslop, F.C., 143. The machine or mill being partly heritable and partly moveable, should go to the executor. The farm could be worked perfectly well without it, as steam travelling machines were now universally in use— Dunn v. Johnstone, January 28, 1818, Hume, p. 451. With regard to the dung, though moveable in itself, it was said that it should be regarded as heritable by destination, but it was more accurate to say that it was moveable property restricted in its use to the farm, and if so, the heir should give the value thereof

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to the executors as he, at the end of the lease, would be recouped— Dryesdale v. Wemyss, January 27, 1848, 10 D. 467, and 6 Bell's App. 455. At any rate, the dung made on the farm after the death of the tenant was moveable and belonged to the executors. Its amount could easily be ascertained.

At advising—