Scottish Court of Session Decisions

The Small Landholders(Scotland) Act 1911 (1 and 2 Geo. V, cap. 49), enacts—Section 2—“ Who to be Landholders.— (1) In the Crofters Acts and this Act (hereinafter referred to collectively as the Landholders Acts) the word ‘holding’ means and includes … (ii) As from the commencement of this Act, and subject as hereinafter provided, every holding which at the commencement of this Act is held by a tenant from year to year who resides on or within two miles from the holding, and by himself or his family cultivates the holding with or without hired labour (hereinafter referred to as an existing yearly tenant). (2) In the Landholders Acts the word ‘holder’ means and includes… (ii) As from the commencement of this Act, and subject as hereinafter provided, every holding which at the commencement of this Act is held by a tenant from year to year who resides on or within two miles from the holding, and by himself or his family cultivates the holding with or without hired labour (hereinafter referred to as an existing yearly tenant).……… (2) In the Landholders Acts the word ‘landholder’ means and includes, as from the respective dates above mentioned, every existing crofter, every existing yearly tenant, every qualified leaseholder, and every new holder, and the successors of every such person in the holding, being his heirs or legatees.”

Section 32—“ Provisions as to Statutory Small Tenants. —With regard to statutory small tenants, the following provisions shall have effect—(1) A statutory small tenant means and includes a tenant from year to year, or leaseholder, not otherwise disqualified in terms of this Act, in regard to whom section 2 of this Act provides that he shall not be held an existing yearly tenant or a qualified leaseholder, and the successors of such tenant or leaseholder in the holding, being his heirs, legatees (if within the relationship specified in section 16 of the Act of 1886), or assignees (if assignation be permitted by the lease).”

This was a Special Case stated by the Scottish Land Court for the opinion of the First Division of the Court of Session in an application at the instance of George Grant, crofter, Waulkmill, Banff, applicant, against Major C. J. Perceval, Simla, India, and another, trustees of the late Lieut.-Col. F. de L. Morison of Bognie and Mountblairy, and as such proprietors of the estate, respondents.

The Case stated—1. George Grant, crofter, residing at Waulkmill, in the parish of Alvah and county of Banff (the applicant), was tenant of the croft of Waulkmill, situated in said parish and county, extending to about fifteen acres or thereby, under lease between the late Duke of Fife and the late Mary Grant and Ann Grant and him, dated 28th January and 17th February 1893, until the term of Whitsunday 1911, when the said lease expired through the running out of the term of endurance therein stipulated. The said George Grant's tenancy was then renewed, or held as renewed, by tacit relocation for the year from Whitsunday 1911 to Whitsunday 1912, in virtue of the 18th section of the Agricultural Holdings (Scotland) Act 1908.

2. The applicant resided on said holding and cultivated it by himself or his family during the year from Whitsunday 1911 to Whitsunday 1912.

4. On or about the 19th day of August 1911 the said trustees of the said Lieutenant-Colonel de Lemare Morison served a notice by registered letter in terms of the above-cited section of the Agricultural Holdings Act 1908 upon the said George Grant to remove from the said croft of Waulkmill at the term of Whitsunday 1912.

5. On 7th May 1912 the said George Grant, in virtue of the provisions contained in the Small Landholders (Scotland) Act 1911, presented an application to the Scottish Land Court for an order determining whether he is a landholder or a statutory small tenant in and of the said holding of Waulkmill, and for an order fixing a first fair rent therefor, or alternatively for an order fixing a first equitable rent therefor, and the period of renewal of his tenancy thereof. This application was duly served on the proprietors of the holding, respondents therein.

6. The application came before the Scottish Land Court for hearing, at Banff, on 22nd May 1912. At the hearing, the proprietors (respondents therein) appeared by an agent, and objected to the competency of the application, in respect that the applicant, having received notice on 19th August 1911, prior to the passing of the Small Landowners (Scotland) Act to remove from the holding specified in the application at the term of Whitsunday 1912, was not, as at 1st April 1912, the date when the Act came into operation, a ‘tenant from year to year' within the meaning of said Act, and particularly of section 2, sub-sections (1) (ii) and (2), and section 32, sub-section (1) thereof, and was therefore neither a landholder nor a statutory small tenant within the meaning of the Small Landholders (Scotland) Acts 1886 to 1911. The agent further stated that, in reliance on the said notice to remove receiving effect, the proprietors had agreed to let the applicant's holding to another tenant, with entry at the term of Whitsunday1912, but did not specify the date of the agreement, the name of the tenant, or produce any document relating thereto. This statement was not admitted by the other party.

7. On 31st May 1912 the following

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interlocutor was issued by the Land Court:— …Find that the applicant was, on 1st April 1912, in lawful possession as a resident tenant from year to year in and of the holding specified in the application: Therefore repel the objection to the competency of the application founded on the said notice of removal.…

The questions of law were—“(1) Whether the applicant was on 1st April 1912 a tenant from year to year within the meaning of the Small Landholders (Scotland) Act 1911, and particularly of section 2, sub-sections (1) (ii) and (2), and section 32, sub-section (1) thereof? And (2) Whether and in respect that the applicant had been served before the said Act passed, with notice to remove from his said holding at the term of Whitsunday 1912, the said application was competently made to the Land Court?”

Argued for appellants—Where, as here, the tenant had received notice to remove before the passing of the Act he was not entitled to the benefits of its provisions.

Counsel for respondent was not called upon.