Scottish Court of Session Decisions

The trustees of the late Colin James Mackenzie of Portmore sold the estate of Portmore to Mr John Somerville, with entry at the term of Martinmas 1897. The disposition contained the usual clauses, and, inter alia, a clause assigning the rents in the statutory form provided by the Titles to Lands Consolidation (Scotland) Act 1868, viz., “and we assign the rents.” This clause was not qualified in any way.

The trustees raised an action against Mr Somerville for payment of the sum of £1346, being the rents payable at Whitsunday 1898 in respect of the ten farms on the estate, which had been collected by the defender.

The pursuers averred—“(Cond. 3) The farms on the Portmore estate are pastoral. The term of entry under the leases is Whitsunday, and the rents for the first year, which are legally payable at Whitsunday, the term of entry, and Martinmas thereafter, are conventionally payable by the leases at Martinmas and Whitsunday following. The term of payment is thus conventionally postponed for six months, and the half-year's rents payable at Whitsunday 1898 are those legally payable at Martinmas 1897 in respect of the second half of the crop and year 1897. The pursuers maintain that they are, by the terms of the contract of sale, entitled to the rents (when soever payable) which were legally due in respect of the possession up to Martinmas 1897, and accordingly claim the whole rents of crop and year 1897, including the second half-year's rents legally payable at Martinmas 1897, but conventionally payable at Whitsunday 1898. (Cond. 4) The rents payable at Whitsunday 1898 for the second half of crop and year 1897, in respect of the said pastoral farms and the grass park, are as follows—1. Long-cote, £125; 2. Kingside, £300 ; 3. Nether Fala, £125; 4. West Loch, £375 ; 5. Shiplaw, £167, 10s.; 6. Harcus, £115; 7. Earlypier, £76, 10s.; 8. Shiphorns, £32, 10s,; 9. Craig-burn, £23; 10. Park, &c., Eddleston, £6, 10s.—£1346.”

They pleaded—“(2) The rents sued for being for the second half of crop and year

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1897, the pursuers are, by the terms of the disposition, entitled to decree as craved.”

The defenders averred—“Said farms are arable, not pastoral, and were let by the late Mr Mackenzie and by the pursuers as such, under leases with the usual clauses regarding the rotation of crops. The leases are referred to. Under reference to the leases, it is explained that the respective tenants of said farms all obtained possession at the term of Whitsunday; that, by the lease of the farm of Longcote the first half-year's rent is declared payable at Martinmas after entry, and the next half-year's rent is payable at Whitsunday thereafter, for the first year's possession, and so forth yearly and termly ; that by the leases of the farms of Kingside, Nether Fala, West-loch, Shiplaw, Harcus, Early Pier, and Craigburn (under the leases of which entry was given to the houses and grass at Whitsunday, and from and after the separation of the crop of the year of entry to the rest of the ground), the first half-year's rent is declared payable at Martinmas after entry, and the next half-year's rent at Whitsunday thereafter for the first year's possession and crop, and so forth yearly and termly thereafter ; and that by the lease of the farm of Shiphorns, the first half-year's rent is declared payable at Martinmas after entry, and the next half-year's rent at Whitsunday thereafter, and so forth yearly and termly thereafter. A statement showing the rents collected by the defender will be produced. Quoad ultra denied. The rents collected by the defender were for possession following the term of his entry, namely, Martinmas 1897.”

The defenders pleaded—“(3) Esto, that any of said farms are pastoral, the defender having collected rents for possession following the term of his entry is entitled to retain the same, and therefore to be assoilzied from the conclusions of the summons. (4) On a sound construction of the contract of sale founded on, and said leases, the defender is entitled to decree of absolvitor, with expenses.”

A joint-minute of admissions was ultimately lodged in which the pursuers stated that they had withdrawn all claim to the rents of the farms of Early Pier, Shiphorns, and Craigburn, while the defender admitted that the farms of Longcote and West Loch were to be taken as pastoral for the purposes of this action.

A proof was taken, evidence being led with regard to the question whether the farms of Kingside, Nether Fala, Shiplaw, and Harcus were pastoral or arable.

Mr James Inglis Davidson deponed as follows—“I am a land valuator, and have had a wide experience in connection with the valuation and management of landed property and farming matters generally. I know the estate of Portmore. In 189(5 I visited it with the view of reporting upon its character and value to the agents of the late Mr Mackenzie. I valued it as for sale. The elevation of the estate above sea level is from 650 to 1750 feet, the average being about 900. From my inspection of the estate it is clear to me that cropping is now carried on to a more limited extent than it had been in previous years, as is general in such districts. It is carried on mainly for the purpose of providing food for the live stock, and for renewing the pasture. It is found in experience that it is a very desirable and necessary adjunct of a stock farm to have a portion of land in crop. You can thus keep a better class of stock than would be practicable if no portion was cropped. Since this question was raised I have re-inspected the estate on two occasions with the view of giving evidence as to the character of the farms and the method of their administration. The state of cropping carried on in 1896 and subsequent years was approximately the same as the state of cropping this year. As regards Ringside farm, the average elevation above the sea is about 900 feet, and I may say that the cropping land on the farm is rather higher than the other land on an average. The extent of the farm is 1600 acres, and the rent under the lease in 1897 is £600. The information given to me was that 800 acres of the farm were arable in the sense that it had been ploughed at one time or other, and that 800 acres consisted of moor pasture, but, so far as I can see from the plan, I am afraid there must have been some slight exaggeration as regards the arable land, because all I can identify from this small scale plan as having been ploughed is roughly between 600 and 700 acres. The representation upon the plan corresponds with the state of facts as existing on the ground when I made my inspection. I examined the lease of Kingside. I am aware there is a cropping clause referable to the arable land. Speaking generally, the course of cropping prescribed for the arable land is the ordinary five-shift rotation— (1) white crop after lea; (2) green crop after white; (3) white crop after green ; (4) young grass or hay; (5) pasture. There is also a clause providing that the tenant is not to break up more lea than 50 acres in any one year. The effect of that clause is that, including first year's grass as a crop, there would be exactly 200 acres under crop, as against 1400 acres in pasture of a more or less permanent kind. That provision automatically prescribes that whatever portion of the ground is arable in the sense of being capable of cultivation, there cannot be in any one year, in fact, more than 200 acres, consistently with the five years' shift. With regard to the remainder of the farm, the 1400 acres not under cultivation, that must necessarily be grass. As matter of fact, about 200 acres are under rotation. As regards the stock on the farm, there are 410 half-bred ewes, besides a proportion of ewe hoggs, which would be one-fourth of that number—about 520 half-breds, young and old, and 415 blackfaced ewes, besides ewe hoggs, and there again you require to add about 100 to 120 ewe hoggs. I consider that the main purpose for which the 200 acres of land are annually cropped is to keep the half-bred ewes on the farm. There is a certain proportion of cattle wintered to put down straw, but there is

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no cattle grazing practised to any extent. The main purpose for which the cropping of the arable land is carried on is to provide turnips in winter for the half-bred ewes, and young grass in spring, and for renewing the pasture. In point of fact, if you did not crop you would require to put on a different class of sheep. In a district of that kind I think no practical farmer would try to make a direct cropping profit off the land under rotation by selling the crops. I speak with some little experience of farming in a high district. They grow nothing but oats, and in an ordinary season the oats will be largely consumed by the sheep and horses. I should think that over the whole of this estate which is under white crop there will be nothing grown but oats; the elevation precludes any other variety.… As matters stand, I think that the course of management which is followed is in point of fact the most judicious that could be adopted, and when one reflects that this state of matters was entered into between the late Mr Mackenzie and the late Mr John Kerr, one of the most practical farmers in Scotland, you may assume they did the best that could be devised in the interest of all concerned. I do not think it is debateable what the source is from which the bulk of the profits come. There are 1400 acres in pasture and 200 acres in crop, and if the suggestion is that the profit from 200 acres at an elevation of 900 feet is as great as the grazing profit of 1400 acres in the same district, I do not think it is discussable. The answer is that the profit must be largely greater on the grazing portion of the farm. (Q) The rent of the farm being £600, supposing the arable portion were let separately, what, as a valuator, do you think would be a fair rent to expect from the arable land which is under cultivation ?— (A) Assuming it was an average portion of the land that has been ploughed, I should say about 12s. per acre, which would give about £120 for the 200 acres. Deducting that from the £600, you have £480 left as the rent of the pasture. For Inland Revenue and other purposes the rent is regarded as being the basis on which profits, or possible profits, may be calculated. Shiplaw is a farm similar in character to Kingside. It extends to about 1100 acres, of which about one-third is arable in the sense I have described. The rent is £335. The lease also prescribes that the arable land is to be cultivated according to the five-shift rotation, and the tenant is limited to break up 40 acres of lea in any one year. The effect of that stipulation is that approximately, out of 360 acres that have been ploughed at one time or other, 160 acres may, in terms of the lease, be in rotation, including 40 acres of first year's grass.… The result of the prohibition in the lease is that only 160 acres out of the 1100 acres of which the farm consists can in any one year be under crop, including first year's grass as crop. The stock of sheep consists of 465 Cheviot ewes, 112 Cheviot ewe hoggs, and 80 blackfaced ewes. I think the main purpose of the cropping on this farm is precisely similar to the purpose in the case of Kingside. In the case of this farm the stock is a Cheviot one, but they are crossed with Leicesters, and half-bred lambs are taken from them; and it is necessary to provide very much the same class of food as for half-breds. I do not think that any part of the crop grown on the arable portion of Shiplaw is or can be grown with a view to sell. In a very favourable season they might sell a little, but as a general proposition that would not be done. In regard to the proportion of profit derived from the two classes of land, I should say it would largely preponderate in favour of the grazing, which largely preponderates in extent. In the case of this farm I think probably 10s. an acre would be a fair annual rent for the arable land, which would give £80 out of the total rent of £335, leaving as the rental derived from the pasture, £255. The elevation of this farm is slightly lower than Kingside on the average, but not appreciably. As regards Nether Fala, the greater proportion of that farm has at one time or another been under the plough, but the land above or on the west side of the railway has apparently been a long time under grass—the bulk of it at anyrate. The cropping has been of late years mainly confined to the land below the railway. The bulk of the land above the railway consists of rough pasture. The extent of Nether Fala is 500 acres. The elevation is about the same as, or a little lower than the other two farms. Under the lease the tenant is bound to follow the five-shift rotation in regard to the arable land, and he is also bound to keep on part of the farm a regular and sufficient stock of sheep as well as other bestial. There is likewise a prohibition prohibiting the breaking up of meadow land, and also limiting the extent of the land which may be broken up in any one year to 40 acres, the effect being that out of the 500 acres only 160 acres can be under crop, including first year's grass.… Obviously the bit of 40 or 50 acres which had returned to pasture in the fifth year would in ordinary course be pasture. This farm carries 300 Cheviot ewes, 80 Cheviot ewe hoggs, and 40 blackfaced ewes. I think that here as in other cases the cultivation of the arable land is mainly an incident of the stock-carrying capacity of the farm, but this may be more a matter of opinion than in the other cases, because the land cropped is larger in proportion to the whole extent than in the other two farms. However, in my view, no one would crop this farm for the purpose of producing a cropping profit; it must be in conjunction with stock. The rent of this farm is overhead about 10s. per acre, but seeing that the land usually cropped is below the railway, I would put 12s. upon it, and 8s. upon the land above. That would give for the 160 acres of arable £96, leaving £154 as the rent of the pastoral portion of the farm. The extent of Harcus is 307 acres. That is the home farm of the estate, and the rent is £230. It includes the policy parks which surround the mansion-house. In the lease there are express conditions prohibiting the tenant from breaking up certain fields which are mentioned in the lease,

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and these fields I understand amount to 225 acres. He is also prohibited from breaking up more than 20 acres of lea in any one year. The course of cropping is the usual five-shift rotation as to the arable land. The elevation of the farm is between 600 and 700 feet. Not more than 80 acres can be cropped in any one year. The lease also prescribes that the Law, which is said to be partly under rotation, shall be laid down as soon as possible in permanent grass. That is the part below the letter C in Harcus on the plan. It is in course of being returned to permanent pasture. J think it is perfectly clear in terms of the lease that the larger proportion of the tenant's profits must arise from the pastoral part of the farm, which preponderates very much over the other. My view is confirmed by the results of my inspection of the ground. It is right to say that this farm differs to some extent from the others. It is a lower-lying farm, and it has been practically all ploughed, and it could be all ploughed, but that is subject to two very obvious disabilities. The fields are policy fields, far from rectangular in shape, and entirely surrounded by trees, which makes harvesting most precarious in such a district, and I do not think it would be politic, apart from the possibility of ploughing them, to crop them to any material extent. Looking to the character of this farm, and assuming that the plantations are not let, it consists really of a series of detached grass fields— such as in ordinary practice would be let as grass parks. I think you may take the rent of the arable land at an average of the total rent, which is something like 15s. per acre, so that 80 acres would give £60, leaving £170 for the balance.”

The evidence led for the defender did not contradict in the main Mr Davidson's evidence as to the proportion of the ground which was actually under crop, and the proportion which had at one time been or was capable of being cultivated. They led evidence to show that the buildings and accommodation for farm servants on the farms were such as were appropriate to arable farms, and that the provisions as to rotation of crops found in the leases were not usually found in leases of farms when the arable land was merely an adjunct of the pasturage.

The leases of each of the farms except Harcus bore that the entry was to be “the term of Whitsunday … as to the houses and grass lands, and from and after the separation of that year's crop from the ground as to the rest of the lands.” In that of Harcus the entry was to be “the term of Whitsunday 1897 as to the houses, grass, and fallow or green crop land, and from the separation of that year's crop from the ground as to the land in white crop.”

All the leases bore that the rent was payable at two terms, “beginning the first term's payment at Martinmas” in the year of entry, “and making the next term's payment at Whitsunday” in the next year, “for the first year's possession and crop.” The stipulations as to cropping, &c., are summarised by Mr Davidson in his evidence, which is quoted supra.

The Lord Ordinary ( Kyllachy), on 25th November 1899, pronounced the following interlocutor:— “Decerns against the defender for payment to the pursuers of the sum of £1182, 10s., with interest thereon, as concluded for, in full of the conclusions of the action : Finds the pursuers entitled to expenses,”&c.

Opinion.—“In this case I am of opinion that the four farms about whose character the parties differ must be considered as mainly pastoral.

I hold it proved—(1) that in each of the four farms the land under grass largely exceeds, both in extent and value, the land under crop; (2) that this has been so during the whole course of the current leases, and indeed for a longer period ; and (3) that the preponderance of grass over crop has been in conformity with the leases and with the most approved methods of management applicable to farms of the class in question.

I do not think it necessary to go into details. Two of the farms include a large area of hill ground; another consists mainly of grass parks, which under the lease cannot be broken up at all; and the fourth consists entirely of land which, if not wholly ploughable, was at one time in that position. Discarding, however, those distinctions, and considering for simplicity only the ground which has at some time been under plough, it is not, I think, disputable that a great proportion of the ground has on all the four farms been for a number of years in permanent pasture. It may be that there has been no sharp line or division between the ground grazed and the ground kept in tillage. The pasture was no doubt broken up, as a rule, at long intervals in order to maintain its quality. It would appear also that in some instances the tillage was more or less distributed over the whole ploughable area, so as in effect to place that whole area, or most of it, under what might be called a ten or eleven or twelve years' rotation. But that does not appear to me to make any substantial difference. The bulk of the land was always in fact under grass; and even if each field or each division were to be considered separately, I should not see my way to describe as otherwise than pastoral a farm of which every field or division was, although under tillage say for three years in every decade, yet for the remaining seven years continuously under grass. Nor, while I appreciate the argument, can I accept as sound the suggestion of Mr Gordon that a farm once arable must always remain so, if the only reason for laying it down in grass has been a thing so transitory as the market price of cereals. I am afraid that it would be a somewhat sanguine view which would anticipate such rise of prices as would make it profitable to put these farms wholly or mainly under plough. But in any case the character of the farms must in my opinion be for the present purpose taken as at the date of the sale; at all events, where, as here, the conditions existing at that date are not quite plainly temporary or accidental.

“The four farms being therefore pastoral, or mainly pastoral, it follows that the

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rents in question, which were conventionally payable at Whitsunday 1898, were legally due at Martinmas 1897, and were so due as being the second half of the rent payable for the grass crop of 1897. To put it otherwise, they were legally due for the possession from Whitsunday to Martinmas 1897, the possession during the winter and spring of 1897–98 being thrown in as an unimportant accessory. In this view I am not able to see an answer to the claim of the pursuers. The defender, who was the purchaser of the estate, entered at Martinmas 1897, and his right to the rents is defined by the assignation expressed in his disposition. By that assignation he has, as I construe the statutory expansion of the actual clause, right only to such rents as are (1) legally due after Martinmas 1897, and (2) so due for possession subsequent to that term. It appears to me that the rents in question do not satisfy either, and certainly do not satisfy both, of those conditions, and therefore that the pursuers are entitled to judgment.”

The defender reclaimed, and argued—If they could establish the fact that the farms were arable they were entitled to succeed. If the farms were arable the rents were payable forehand, and in terms of the statute the rents collected at Whitsunday 1898 passed to the purchaser. What was meant by arable land was not land actually under crop, but land de facto under course of cultivation, land fit to be ploughed, and which formerly had been ploughed. The nature of the land as opposed to the actual use at the moment was the true test— Minister of Kilbride v. Maule, May 18, 1809, F.C.; Bruce v. Carstairs, May 30, 1826, 4 S. 626; Macmillan v. Presbytery of Kintyre, November 19, 1867, 6 Macph. 36. In the last mentioned case the fact that land had been converted into a lawn was held not to destroy its arable character. In the cases relied upon by the pursuers the portions of the farms ever cultivated were very small, or the cultivation was of ancient date. The facts proved showed that these lands were of an arable character, there being a large proportion of them entirely arable. This view was confirmed by the terms of the leases, which contained the ordinary clauses of rotation applicable to arable farms. It was true that they were situated at a high elevation, but certain of the farms which the pursuers admitted to be arable were at the same elevation. (2) Even if the farms were held to be pastoral the purchaser was entitled to rents payable at Whitsunday 1898— Hunter v. Stewart, Nov. 18, 1857, 20 D. 60. The rents to which he was entitled were those which “were to become” legally due after his disposition and for possession subsequent to it. Both these conditions were satisfied. These rents were legally due for the possession from Martinmas 1897 to Whitsunday 1898 —Binny v. Binny, January 22, 1820, F.C., at p. 93; Kerr v. Turnbull, 1760, 5 Brown Sup. 876; M'Laren on Wills, i. 213, note. The cases on which the pursuers founded, dealing with the question as between heir and executor, were not conclusive of the point as they contended— Ersk. ii. 9, 64 ; Blaikie v. Farquharson, 1849, 11 D. 1456.

Argued for the respondents—To determine the character of a farm the right course was to look at its actual de facto use, to ascertain the source from which the rents were derived— Petley v. Mackenzie, November 21, 1805, Hume 186; M‘Clymonts v, Cathcart, July 14, 1848, 10 D. 1489; Campbell v. Anstruther, December 20, 1836, 9 Sc. Jur. 163. Accordingly it was not accurate to describe as arable a farm which at some former date might have been, or at some future date might be, under the plough. Nor was the defender entitled to refer to the leases to support his contention. In point of fact their terms went far to refute it, as they clearly indicated that the tenants were not encouraged to treat their farms as arable, they being bound to keep a number of sheep, and only to cultivate a small part. If the farms were looked at in accordance with this principle, the great preponderance of the ground was clearly pastoral, and they must be treated as a whole as pastoral. That being the state of the facts, the law on the question was very clear, that the defender was not entitled to these rents. They did not satisfy either of the conditions prescribed in the statute. They did not become legally due at Whitsunday 1898, but at Martinmas 1897, and were for possession prior to the purchaser's term of entry—Ersk. ii. 9, 64; Bell's Conveyancing, i. 639. A tenant in a pastoral farm was legally bound to pay the first half-year's rent when he entered, and it was in respect of the crop on the ground— Johnston v. Marquis of Annandale, 1727, M. 15,913; Elliots Trustees v. Elliot, 1792, M. 15,917; Kerr v. Turnbull, supra; Pringle v. Pringle, 1741, M. 15,907. The condition imported into the conveyance by the statutory provision was a legal and not a conventional condition, so the terms of the leases could not regulate the legal apportionment of the rents— Campbell v. Campbell, July 18, 1849, 11 D. 1426; Lord Glasgow's Trustees v. Clark, February 27, 1889, 16 R. 545; Campbell's Trustees v. Campbell, 1800, M. sub voce Term, Legal and Conventional, App. 1; Bell's Prin., sec. 1499.