Scottish Court of Session Decisions

Subject_1 REMOVING.
Subject_2 SECT. III.

Warning, in what Cases necessary. - How to be executed.

Mr Baron Gordon
v.
The Representatives of Robert Michie

Date: 13 December 1794
Case No. No 90.

The heirs of a tenant for life may be removed summarily between terms.

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Mr Robert Michie, minister of the parish of Clunie, at Whitsunday 1750, entered into possesssion of a farm, on a lease, to last ‘during all the time of his incumbency’ in that parish.

Mr Michie remained minister of Clunie, and possessed this farm, till his death, which happened on the 15th June 1794.

Mr. Baron Gordon, the landlord, did not dispute the right of his Executors to the crop on the ground, and, as a matter of favour, he allowed the use of the grass for some time after the death of the tenant. Considering himself, however as legally entitled to immediate possession of the farm, he, after giving the Representatives of the deceased previous notice of his intention, on the 26th September, presented a petition to the Sheriff, praying that they might be ordained immediately to remove from it.

The Sheriff, on the 15th October, ordered them to remove in 14 days.

By this time, the Representatives had paid the rent for crop 1794.

They afterwards presented a bill of advocation against the judgment of the Sheriff, which, having been refused, they, in a reclaiming petition,

Pleaded; A tenant is entitled to continue in possession after the period stipulated in the lease is completed, until he is regularly warned to remove; and it makes no difference whether continuance of possession is claimed by himself or his heir. A tenant for life has even higher powers than an ordinary lessee, and in so far as there is any difference between the situation of their heirs, the heir of the former is more entitled to favour as in his case the duration of the lease is altogether uncertain, and will generally be put an end to unexpectedly between terms, when his heir has provided no place to remove to, and when the effects of the deceased cannot be disposed of without great disadvantage. It is true, that the heir of a liferenter may be summarily removed; but there is this material distinction between a liferenter, properly so called, and a liferent-tenant, that the one possesses gratuitously, and therefore, upon his death, a renewal of the same right will not be presumed, whereas the other pays an adequate rent for the subject, from which the law presumes, that he draws his whole maintenance, and his right to which it has declared capable of being dissolved only in consequence of a regular warning. The tenants even of a liferenter cannot be removed at his death, without warning, as little could the assignees and subtenants of a liferent-tenant, and there seems the same reason why his heirs should be protected in the possession; Bankt. v. 2. p. 116. Erskine, B. 2. Tit. 6. § 49.

Besides, the heir is liable for the current year's rent, and consequently is entitled to continue in possession. If it were otherwise, it would frequently be impossible to ascertain the proportion of rent due to the landlord.

Answered; When a lease is descendible to heirs, the representatives of the tenant are entitled to possess till they are regularly warned to remove. The heir has then a lawful title of possession, and tacit relocation takes place. But in a liferent right, the heir, from the nature of the thing, is excluded. It never was supposed, that the heir of a liferenter was entitled to make up feudal titles to the subject; and although service is not necessary with regard to leases, the representative of a tenant for life has, for the same reason, no right to enter into possession. The liferent-infeftment or liferent-lease was the only circumstance which excluded the right of the proprietor, and it being removed, he alone is entitled to assume possession; Craig, Tit De migrando; Stair, b. 2. tit. 9. § 38.; Mackenzie's Obs. on act 1555, c. 39.; 23d February 1760, Tennent against Tennent, No 87. p. 13845.

According to strict principle, perhaps, warning should not be necessary, even against the tenant of a liferenter. Practice has however established its necessity; and as the tenant has a legal title of possession, there is obviously room at least for the distinction.

Farther, as the landlord, in such cases, cannot foresee the termination of the lease or consequently give warning before the death of the tenant, if warning were afterwards necessary, it would frequently be in the power of the heir, when the lease was beneficial, to exclude the landlord for a year after the death of the tenant, contrary to the express stipulation of the parties, while at the same time, wherever the rent was high, the landlord could not force them to continue in possession.

In the present case, there is no dispute about rent, and in every case of the kind, the proportion due to the landlord may easily be ascertained. Matters must necessarily be settled in this way, whenever the heir does not claim possession

Upon advising a reclaiming petition, with answers, the Lords, upon the general ground, unanimously “adhered.”

Lord Ordinary, Ankerville. Act. Honyman. Alt. Maconochie. Clerk, Pringle. Fol. Dic. v. 4. p. 223. Fac. Col. No 146. p. 335.