(1785) 3 Paton 5
CASES DECIDED IN THE HOUSE OF LORDS, UPON APPEAL FROM THE COURTS OF SCOTLAND.
House of Lords,
Subject_Sale — Title — Incumbrances — Price. —
Circumstances held not sufficient to set aside and void the sale, although the missives on one side expressly declared, that unless the titles were found sufficient, the bargain then made was to be null and void. Also held, that the purchasers were not bound to pay the price until certain incumbrances were purged affecting the purchase.
Robert Johnston, proprietor of some houses in Leith, mortgaged them to William Petrie, and Helen Berrel, for two distinct and separate sums, amounting to £200. Johnston thereafter failed in business, and removed himself to London, whereupon two of his creditors adjudged the property, and entered into possession, by uplifting the rents of the same.
Some years thereafter, the appellant Bruce acquired, by purchase from Johnston, the right to this property, paying him at the time, £150 for the reversion, and the purchaser,
The appellant thereafter entered into possession, and let the principal part of the premises to the respondents, Messrs. Robert and Alexander Cleghorn. The latter gentleman proposed to purchase these premises, and the following writings were exchanged:—
Leith, 6th September, 1776.
We hereby make offer of £350 Sterling, for your whole subjects, back area, and office-houses belonging thereto, lying in the Tolbooth Wynd here, £200 of which we oblige ourselves to pay you at the term of Martinmas first, and £150 more at the term of Whitsunday thereafter, being the full balance, your obliging yourself, heirs and executors, to dispone and deliver up to us all your rights and titles to said subjects, with full warrandice, and clear:—And if, upon examining your rights to said subjects, they be found insufficient, both parties shall be free, and the bargain made void and null. And in case any debts or incumbrances shall appear which have not been heard of, the bargain shall be also void and null, and both parties free.
(Signed) Robt. & Alex. Cleghorn.
To Mr. William Bruce,
late Shipmaster, Dundee.”
Sept. 6, 1776.
To this letter of offer, the following answer was returned:
Leith, 6th September, 1776.
“I excep of your offer for my wholl subgiks in the Tolboth Wynd hear, with the bak area, and office houses belonging thereto, namely, thrie hundred and fifty pounds Sterling, two hundred of which to be paid me on order at terra of Mertinmas first, and one hundred and fifty pounds Sterling at the next term of Whedsondy inshouing, being the full balance. And I oblig myself, my heirs and executors, to give you up all my rights and titles to the said subgiks, with full warrdice, clier at the term of Mertinus first; all the rent till Mertinus first to be payed to me. As witness my hand.”
(Signed) “ William Bruce.”
“To Messrs Robt. & Alex. Cleghorn,
Bakers in Leith.”
It was stated by the respondents, that when the title deeds were sent him to be examined by his agent, instead of these proving to be a complete progress of title deeds, there was nothing but some old memoranda relating to the property, of no use or value. This was intimated to the appellant, who, in reply, demanded payment of the price, stating that they were bound to accept them, as sufficient title deeds, or give up the bargain.
Hearing that the appellant was anxious to give up the bargain, in consequence of having been offered a higher price for the property, the respondents brought the present action for implement of the same.
The appellant contended that the respondents wished to keep both the property and the price, and that, having given them all the title deeds in his possession, he had implemented his bargain under the missives. He also offered to complete the sale, by granting a disposition to them along with the progress of writs already in their hand; and if they did not consent so to accept these writs, he required them, in terms of the agreement, to give up the bargain, and send back the papers.
Aug, 5, 1777.
June 19, 1778.
After some discussion, Lord Gardenstone, Ordinary, pronounced this interlocutor, 9th Oct. 1776, “The Lord Ordinary having considered the minute of debate, finds there is no ground for setting aside or voiding the bargain of sale; and finds that the pursuers are not obliged to pay the price even in part, until the extent of the incumbrances by adjudications are ascertained; nor in whole, until the said incumbrance is purged or discharged, or sufficient caution is found to that effect. And as it appears to the Lord Ordinary that the litigation has been occasioned by an indirect attempt on the part of the defender (appellant) to set aside the purchase, finds the defender liable in expenses, and allows an account to be given in.” On representation, this judgment was adhered to by the Lord Ordinary.
Feb. 2, 1779.
Feb. 18, 1779.
On reclaiming petition to the whole Lords, praying an alteration of the above judgment, the Court, of this date, adhered, and refused the petition. A second petition met the same fate.
Against these judgments the present appeal is brought.
Pleaded by the Appellant—1. That the letters above recited, expressing the terms of the bargain, are not sufficient in law to bind the parties. 2. That although they should
Pleaded for the Respondents.—1. The appellant has contended that the respondents are bound to pay the adjudication debts or incumbrances; but the price of £350 was all that the respondents undertook to pay, as the fair and full price of the subjects, and which sum was offered on condition of the latter being, “clear of every burden or incumbrance whatsoever.”—2. The appellant on his part, obliged himself and his heirs, to give up all his right and title to the property, with full warrandice and clear, at the terra of Martinmas then first. Although, therefore, the respondents had paid up the whole price of three hundred and fifty pounds before the particulars of the debts came to their knowledge, they would have been entitled to the repetition of the amount of those debts upon the appellant's express warranty. Bruce the appellant, stands personally liable at this moment to account to the creditors adjudgers for the £230 he received as factor for them, under the order of the Sheriff of Edinburgh. The respondents are not liable to replace that money to Bruce, with whose factory intromissions they had no concern. If they be not liable to replace that money to the appellant, they cannot be liable in the payment of it to his creditors, and consequently the property which they have purchased for an adequate price, ought to be cleared of the incumbrance. And they are now willing, as they have all along been, to pay the balance coming to the appellant after paying those debts.
After hearing counsel, it was
Ordered and adjudged that the interlocutors complained of be, and the same are hereby affirmed.
Counsel: For Appellant,
For Respondents, Ilay Campbell.