Scottish Court of Session Decisions

William Hamilton Walker, pursuer, brought an action in the Sheriff Court at Dumfries against Joseph Kerr, defender, for declarator that the defender had no right or title to the further occupation of the farm of Old Moss-side, of which the pursuer was proprietor, and for warrant summarly to eject him therefrom.

The pursuer pleaded, inter alia—“(2) The defender's application for a renewal of his tenancy as from Whitsunday 1915 having been refused, he has ceased to be a statutory small tenant of the said farm of Old Moss-side. (3) The defender having no right or title to possession of said farm, decree should be granted as craved.”

The defender pleaded, inter alia—“(1) The action is incompetent, and should be dismissed with expenses.”

The Sheriff-Substitute ( Campion), sustaining the first plea-in-law for the defender, dismissed the action.

Note.—“On or about Whitsunday 1904 the defender became tenant under the pursuer of the farm of Old Moss-side. No formal lease was entered into, and the defender, who was still in the occupation of the holding at 1st April 1912, then became a statutory small tenant till Whitsunday 1914 by virtue of the Small Landholders (Scotland) Act 1911. The defender applied for and was granted a renewal of said tenancy till Whitsunday 1915. On 5th April 1915 the defender made application to the Land Court for further renewal of tenancy, which application was refused.

The pursuer now craves this Court to find that the defender has no right or title to occupy said farm of Moss-side, and to grant warrant summarily to eject him, and to interdict him from again entering upon the same. The question is whether, looking to the circumstances of this case, such a crave is a competent one.

The defender cannot be said to be in possession by force, fear, or mere tolerance, or as Professor Rankine puts it in his work on Leases, with “no shadow of a title.” Further, as to what constitutes a case for

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summary ejection, see the opinion of the Lord President in the case of The Scottish Property Investment Company v. Horne, 8 R. 737, 18 S.L.R. 525. It is true that the defender's application, thus far considered by one member of the Land Court, has been refused, but any order or determination arrived at under such delegated power has not the effect of a final judgment, but is appealable to a quorum of three members of the Land Court, one of whom shall be the chairman of the Land Court—Small Landholders (Scotland) Act 1911, sec. 25, sub-sec. 5.

This case is therefore still pending before another Court, of which judicial notice is to be taken by all Courts of Justice as specially provided by the section dealing with the jurisdiction of the Land Court. So long as the matter continues in dependence in that Court, it constitutes, I think, one fatal objection to the competency of an action dealing with the same matter in this Court. As to how long an action continues in dependence in a Court, I may refer to the old case of Aitken v. Dick, 1863, 1 Macph. 1038. Lord Deas there says—‘I have no doubt that an action continues in dependence till expenses are disposed of.’ The action must therefore continue in dependence while still under appeal.

It is further admitted that no notice of removal has been served by the pursuer on the defender. Indeed we have no written notice of termination of tenancy given by either side in terms of sec. 37 of the Sheriff Court Acts 1907–1913. On the requirements of notice and subsistence of tacit relocation, so far as either may have any bearing on the present case, we may refer to Oag v. Sharp's Trustees in the Scottish Land Reports for April 1913, and Clyne v. Sharp's Trustees, 1913 S.C. 907, 50 S.L.R. 688. We here find no steps resorted to on either side to bring to an end a tenancy admittedly existing up till Whitsunday 1915. It would be markedly foreign to the whole scope and tendency of the Small Landholders and other recent cognate Land Acts were the effect of any one of them to dispense with notice which the Sheriff Court Act makes an imperative preliminary to warrant of ejection.”

The pursuer appealed to the Sheriff ( Anderson), who adhered.

Note.—“I agree with the views of the Sheriff-Substitute and have little to add. At the date of the raising of the action, and at the time when I heard the appeal, the question whether the defender was entitled to obtain from the Land Court a renewal of his tenancy as a statutory small tenant was still under the adjudication of the Land Court. The defender could not therefore be said to have no title of possession, and an action of ejection was not competent. I think the time when the competency of the action falls to be determined is at the date when it is raised.…”

The pursuer appealed to the Second Division of theCourt of Session, and argued—The tenant was not appealing to tacit relocation as his title to remain in occupation, but was relying upon obtaining a further order by the Land Court. As soon as the statutory small tenant had had his tenancy terminated by the Land Court he had lost all title, and he could not found upon tacit relocation— Sutherland's Trustee v. Geddes, 16 R. 10, 26 S.L.R. 6; M'Farlane v. Mitchell, 2 F. 901, 37 S.L.R. 705. The period of tenancy had been limited by the Land Court to one year, and on the expiry of that year there was no right to remain in possession, although if neither party had taken any steps section 32 (5) of the Small Landholders (Scotland) Act 1911 (1 and 2 Geo. V, cap. 49) would have operated tacit relocation. The case of Hill v. Wilkie, 1916, 53 S.L.R. 728, did not apply, as there no notice was timeously given to modify the term of the renewing lease. There was nothing in the statute to say that if a tenant had not succeeded in clothing himself with a statutory right when his tenancy expired he had any right or title. This action of ejection was lodged at a time when the tenant had no title, and the procedure was thus competent and the action relevant. Counsel also referred to Clyne v. Sharp's Trustees, 1913 S.C. 907, 50 S.L.R. 688, as distinguishable from the present case.

The defender argued—This was not a competent form of process. Removing was competent, but not summary ejection— Robb v. Brearton, 1895, 22 R. 885, 32 S.L.R. 671, per Lord Adam An action for a summary warrant of ejection was only competent on notice having been given six months previously—Sheriff Courts (Scotland) Act 1907 (7 Edw. VII. cap. 51), sec. 30. The question of tenancy was still under consideration, as the tenant's appeal to a full quorum of the Land Court, which he had timeously lodged within one month, was still pending. At anyrate section 32 (5) of the Small Landholders Act 1911 ( cit.) made applicable to the tenant section 18 of the Agricultural Holdings Act 1908 (8 Edw. VII, cap. 61), whereby the landlord was bound to give six months' notice— Johnston v. Thomson, 1877, 4 R. 868, 14 S.L.R. 558.