Scottish Court of Session Decisions

Lord President.—The lease between the complainer and the respondent provides that the complainer should have power to resume the lands let for any purpose whatever except that of letting to another agricultural tenant. The complainer proposed to take advantage of that clause and to resume possession of the land in question for the purpose of grazing it himself in order to rear pedigree sheep, and it is not disputed that, under his contract, he is entitled to resume for that purpose. But it is said that by the Agricultural Holdings Act, 1908, passed after this contract had been entered into, the purposes for which the complainer is entitled to resume the land are limited, in other words, that the statute has expressly altered the terms of the bargain between landlord and tenant here.

I cannot think that that effect was produced by the 5th subsection of 18th section, to which we were referred. It provides that the landlord may resume in a case such as this for the purpose of “building, planting, feuing, or other purposes.” Now, it is quite true that the landlord does not propose to resume for building, planting, or feuing, but he does propose to resume for another purpose; and the question that was argued to us was this:—Whether or no the words “other purposes” are limited by the words which precede them to purposes ejusdem generis, according to the familiar rule of construction. I think that they are not, because, in the first place, I do not think that this clause in the Agricultural Holdings Act is one to which the rule of ejusdem generis applies at all, and that for the reason which was given by Lord Kinnear in the case of The Admiralty v. Burns, where he says,—“The second observation is perhaps of more importance, and it is this, that if you are to limit general words by holding that they must cover only things that are ejusdem generis with preceding specific words, you must find that these specific words themselves are ejusdem generis with one another.” Now, I cannot think that building, planting, and feuing are ejusdem generis with one another, and accordingly I think that this clause of the Act of Parliament is not one to which the rule of construction applies.

But I, for my part, go further, and say that “other purposes” in the statute in question must clearly include “any purpose” which is a matter of express contract between the landlord and the tenant, even although it might not be ejusdem generis with words which we see in the Act of Parliament; and I think it would be out of the question to hold that an Act of Parliament could so seriously modify the contract—or rather delete or alter entirely the contract—between landlord and tenant as would be the case here if we were to hold that “other purposes” did not include a purpose which was made matter of express contract between the parties.

I therefore propose to your Lordships that we should adhere to the interlocutor of the Lord Ordinary.

Lord Johnston.—I agree in the conclusion to which your Lordship has come, for this very simple reason. You cannot, I think, reduce the purposes enumerated in subsection 5 of section 18 of the Agricultural Holdings Act, 1908, to any category other than this—if it can be called a category—that they must be purposes inconsistent with the continued occupation of the subjects by the tenant and at the same time must be consistent with the good faith of the lease. Now in this lease we have a power to the landlord to resume the lands or any part of them “for any purpose whatever,” with the very express exception of that of letting to another agricultural tenant. Resumption for any purpose is inconsistent with the tenant's continued occupation. But if it is for the landlord's personal use, and not to enable him to relet to another tenant, it is not inconsistent with the good faith of the lease. And, therefore, in my opinion, the complainer is not in any way precluded by the terms of the enactment in question from exercising that right.

Lord Skerrington.—Section 18 (5) of the Agricultural Holdings Act, 1908 speaks of the resumption of land for “building, planting, feuing, or other purposes.” These words seem to me to refer to a distinction which has always been familiar to lawyers between terminating a lease as regards either the whole or a part of the subjects, and resuming either the whole or a part of the subjects for some particular purpose. Accordingly, it is essential to the idea of resumption that the landlord should have some definite purpose in view—I mean a purpose different from simply terminating a tenancy in order that he may be free to relet the property to anyone else. The effect of section 18 (5) is that we must read this lease and see whether it contains a bona fide clause of resumption, or whether, under the guise of resumption, it authorises the landlord to terminate the lease on giving some short notice such as the law allowed prior to the Act of 1908, and such as it has been suggested that the Act of 1908 will not tolerate. Now, the clause in the lease is plainly a bona fide clause of resumption, because, although the purposes are extremely wide—“any purpose whatever”—the right of the landlord is so limited that he must not resume for the purpose of letting to another agricultural tenant. In other words, he must not resume for the purpose of terminating the lease. Accordingly, I agree with your Lordship in thinking that the Lord Ordinary was right, and that we should affirm his interlocutor.