James Lawson, Tenant in Castle Nairne v. Mrs. Wedderburn Ogilvy, of Ruthven [1834] UKHL 7_WS_397

UKHL
James Lawson, Tenant in Castle Nairne v. Mrs. Wedderburn Ogilvy, of Ruthven
[1834] UKHL 7_WS_397 · 1834-07-08
A lady who was served as heiress of entail, and “only child” of her father, held (affirming the judgment of the Court of Session) to have a sufficient title to insist for payment of rent falling under the executry.

Subject_ Lease. —

It was provided by a lease that a tenant should not take two white crops, or plough up for crop any part of the farm which had not been three years in grass, and if he deviated from this rotation he should pay 10 l . of additional rent for each acre so cropped for the last three years of the lease; and in the penult year of his lease he cropped a field which had not been three years in grass, and also cropped the same field in the last year of the lease:—Held (affirming the judgment of the Court of Session), that the tenant was liable in the additional rent for both years.In 1806 James Ogilvy, Esq., of Islabank, the father of the respondent, entered into missives of lease with the appellant, James Lawson, by which he let to the appellant the farms of South and North Grange, of Airly, and the farms of Parkend and Fentonhill, as all then occupied by the appellant. The lease was to endure till Whitsunday 1827, as to the houses and grass, and till the separation of the crop as to the arable land; and the rent was to be 230 l . for the farms of South and

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Mr. Ogilvie died in September 1826, and was succeeded by the respondent, his only child, who was infeft as heiress of tailzie and of line on the 5th day of November 1827.In the month of October of the same year she raised, with consent of her husband, an action before the sheriff of Forfarshire against the appellant, setting forth the terms of the lease, and in particular the above clause, and averring, “That in the year 1823 the field, consisting of about fourteen Scots acres, lying on the south-west of the cot-house in the middle of the farm,

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In defence it was pleaded, 1. That the respondent had not stated the nature of her title to pursue. (This was obviated by an amendment of the libel, in which she described herself as “only child and heir of tailzie and of line” of her father, and infeft as such.) It

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3. In regard to the merits, the appellant stated, that the farms of South and North Grange formed two divisions of seven fields each, and Fentonhill and Parkend formed a third division. The seven fields in each of the first two divisions were pactioned to be cropped in such a manner “so that there should be at the expiry of the lease one field in clean fallow, or drilled green crop, three of said fields in sown grass, and the other three in corn crop.” In the one division, the rotation of cropping was strictly observed; in the other, the state of the cropping for the last year was as follows:—one field in clean fallow, three fields in sown grass, of one, two, and four years old, and the remainder in crop; and he admitted, that a field of about fourteen acres, next adjoining to the field left in grass four years old, was broken up in 1826, when there was grass of two years old only, instead of three. In this way he alleged that the only deviation from the prescribed rotation was, that a field of grass of four years old was left in place of one of three, which was a difference much in favour of the respondent's interest. And he maintained that, supposing he was liable for breaking up that grass field in 1826, he could not be liable for additional rent, further than for that year, because he was entitled to break up that field for crop 1827. By paying the stipulated

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The Sheriff decerned in terms of the libel, and issued this note:—

“There appears to be no doubt that the defender deviated from the prescribed rotation as to the field in question for crop 1826, and also for crop 1827, and must pay the additional rents for both years: that rent is no doubt high, but still it is rent, not penalty, and this Court must adhere to the bargain between the parties. On account, however, of the high additional rent, and that the pursuers have failed in some parts of the discussion, no farther expenses have been awarded than those previously found due.”
The appellant brought the case under review of the Court of Session by advocation, in which Lord Newton on the 9th December 1831, repelled the reasons, and remitted simpliciter; but found no expenses due. The appellant reclaimed to the Inner House; and the judges, being equally divided in opinion, ordered cases, on advising which they unanimously (16th May 1832) adhered. *Lawson appealed.Appellant .—1. As the action is insisted in by the respondent, in the character exclusively of heiress of entail

Footnote

* 10 S. & D., 531.

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2. It cannot be held to have been the intention of the parties that the penal rent should be exigible in the case that has occurred. The lease specifies the object of the rotation to be, that “there will be always during the lease, and at the expiry thereof, in each of the two divisions, one field in clean fallow or drilled green crop, three of said fields in sown grass, and the other three in corn crop;” and the fact is, that there was, at the expiry of the lease, the proper number of fields in each division of the farm in grass, fallow, or green crop, and corn crop.3. But, at all events, as the additional rent is an exorbitant penalty, and as the deviation from the mode of cropping was unintentional and venial, and the damage sustained of the most trifling description, it is in the power of the Court to modify the penalty to such an

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4. Supposing, however, the additional rent to be due and exigible for the year 1826, the claim for additional rent for the succeeding year, 1827, is inconsistent with the true meaning of the clause, which, being of an unfavourable nature, must receive the most strict and limited construction. †The penalty stipulated for miscropping previously to the three last years of the lease, and for miscropping within the three last years, is imposed in respect of a deviation from the prescribed system of rotation; and it must be held to be satisfied by the payment for the year 1826, as being exacted in respect of “a deviation for ( i. e . during) the three last years of the tack.” The clause does not authorize the penalty to be exacted oftener than once in respect of the same deviation, whether that deviation has taken place previous to the commencement of, or during the three last years of, the lease.The Court below held, that the words “for the last three years of the tack” are intended to specify the time during which the additional penalty should be paid; whereas it is obvious that it was intended to specify the time within which the deviation inferring the penalty might be committed. If the deviation take place during those years, then the additional rent is to be exigible; but if it be paid for the first of the three

Footnote

* Mackintosh v. Macdonald , 1st Feb. 1788, Mor. App. Tack. No. 5.† Johnston v. Forbes , 22d Feb. 1639, Mor. 10037; Sir James Suttie v. Somner , 10th July 1828, 6 S. & D, 1122.

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Respondent .— 1. The objection that the respondent has no right to recover any part of the additional rent for the year 1826, inasmuch as one half of the rent of that year belonged to the executors, and not to the heirs of the late Mr. Ogilvy, was overruled by the Sheriff by an interlocutor, of which the appellant did not complain in his advocation. But, even if the question were still open, there is no ground for the objection. The respondent distinctly set forth that she was the “only child” of her father, as well as his heir of tailzie; and this amounted to a declaration that she was de jure the person entitled to the office of his executor; and it is not necessary that an executor be confirmed before raising an action. It is sufficient if he produce his confirmation before extract; and if it be not necessary that he be confirmed when he raises his summons, it cannot be necessary to state in his summons that he is so.2. By the lease the appellant is permitted to take two crops of oats in succession, (a practice which under ordinary circumstances is reprobated as contrary to good management,) only on one condition, viz. that the ground shall have been previously three years in grass. But it is admitted that when the field in question had been only two years in grass, he took a crop of oats in 1826, and another in 1827. It is therefore of no relevancy to say that he left a field in grass four years old, even if the statement were accurate; and

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3. It is not competent for the Court to modify the rent. It is laid down by Mr. Bell, in his Treatise on Leases, * as the conclusion which is to be drawn from all the cases, that a “clause stipulating an additional rent, in order to enforce the conditions of the lease, will be literally interpreted even where the additional rent has been accidentally incurred, and although, from the powers reserved to the landlord, and from its disproportion to the actual damage sustained, it should amount to an exorbitant penalty.”

This rule was enforced in Frazer v. Ewart . †

4. Equally untenable is the plea that the appellant is entitled, on paying the additional rent for the year in which he commenced the deviation, to continue to deviate in future years merely on paying the ordinary rent. It is plain that if he take two crops of oats from ground which has not been three years in grass he is guilty of a deviation for each of the crops so taken; and he deviates more from the spirit of the contract by taking the second crop than the first.For let it be supposed that the appellant after two crops of oats (the ground having been three years in grass) had proceeded to take a third crop of oats, instead of fallowing the ground or sowing it with green crop, it is clear that in that case he would have been liable for the additional rent during that year; but if, during the next year he took a fourth crop of oats, then, according

Footnote

* Bell on Leases, p. 202, note.† Fraser v. Ewart , 25th Feb. 1813, Fac. Coll.

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The lease stipulates not only that the farm during each year shall consist of a certain number of breaks, each under a particular crop, but also that each of these crops shall follow a particular course of previous cultivation. It is not enough that there shall be two sevenths only in oats. It is a part of the contract that one of these sevenths shall be oats from grass of three years old newly broken up, and that the other shall be a second crop of oats from grass of the same age.Lord Chancellor .—My Lords, I have thought it necessary to call upon the respondent's counsel for an answer only on one point; and upon that point the first question is, whether there be any or what portion of the rent which falls within the executry; and, in the next place, whether enough has been done in the proceedings to supply the defect in the summons? I should be extremely sorry if any material alteration were necessary in the interlocutor, the more especially (though it must be admitted that the point as to the defect of the summons was taken in the course of the argument) as I can find no appearance of any discussion having been given to it by the Court of Session; and it is exceedingly unpleasant, when a case comes before a Court of the last resort, to make any considerable alteration in the judgment upon grounds that do not appear to have occupied, any considerable portion of the attention of the Court. On

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Adjourned.Lord Chancellor .—My Lords, I have looked again into this case and into my notes, and into some authorities, and the opinion I then held is confirmed. I have now, therefore, humbly to move your Lordships that the interlocutors appealed from be affirmed, but without costs.The House of Lords ordered and adjudged, That the said petition and appeal be and is hereby dismissed this House, and that the interlocutors, so far as therein complained of, be and the same are hereby affirmed.Solicitors: Moncrieff, Webster, and Thomson— Spottiswoode and Robertson, Solicitors.