Subject_1 ANNUALRENT. Subject_2 ANNUALRENT due by those who are lucrati, as having had the use of money belonging to others.
L Clunie and Stirling v. Ogilvie
Date: 20 July 1626 Case No. No 81.
Found in conformity to the above.
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In an action betwixt L. Clunie, Thomas Paterson, and James Stirling, his assignee, against Mr David Ogilvie, who had bought the lands of Frothie from the L. of Clunie for a certain price, and which price he was not obliged to pay while James Curie's renunciation of his right, to the lands disponed, were delivered to him; the Laird of Clunie, and his assignees, pursuing for the annualrent of the money conditioned for the price of the lands, or else for the profit of the land intromitted with by him since the alienation, seeing he both possessed the lands and kept the money without profit paying; and that they offered, in place of James Curie's renunciation, which was factum impræstabile, he being deceast, and there being no person who would be heir to him, to give sufficient and responsal cautioners, to warrand him at all hands, for all skaith and damage which-ever he might incur, for not delivery of the said renunciation; and the defender contending, that he could not pay any annualrent for the said money, except it had been so contracted betwixt the parties, which was not; or else that he had been in mora for not paying of the same, which could not be shown to be on the defender's part, seeing non per eum sed per actorem stetit, that the sums were not paid, in respect: he had not procured the said renunciation, as he was obliged in their contract. The Lords found, that albeit the contract bore nothing of paying of annualrents for the moneys; yet, that it was not equitable that the defender should possess both the lands, and retain the money, without paying of the annualrent, albeit the said renunciation was hot obtained, seeing he had only possest the said lands by virtue of the said contract, and right acquired thereby from the pursuer; but because the defender had paid to the pursuer a part of the price of the lands, and had retained another part of the price convened upon, while the said renunciation should be delivered, The Lords found, that in so far as the profits of the lands, and the farms, and duties thereof, would exceed the annualrent of the sums which the defender had paid in part of payment of the price, as said is, that for the superplus of the profit and duties of the land, more than the ordinary annualrent of the moneys received by the pursuer would extend to, the said defender should refund and pay back the same again to the pursuer: But concerning the rest of the price, and profit thereof, the Lords would not sustain the said pursuers action; and found that the said defender was not subject nor holden to pay the same, the said renunciation not being obtained, albeit that the pursuer offered caution to warrand the defender thereof, as said is; and so, by this decision, the Lords had no respect to the bargain, that the same was perfected by buying and selling, and had taken effect by right and possession; but they thought it most reasonable, that what profit the buyer had, of the lands bought by him, more than the annualrent of the money which he had actually paid to the seller, the same should be refunded to the seller; but respect to any of the rest of the money contracted to be paid, and retained unpaid, for not delivery of the said renunciation; and, for the which retained money, they found him not holden to pay any annualrent for the cause foresaid. (See Sale.)
Act. Hope & Nicolson.Alt. Stuart & Fletcher.Clerk, Gibson.
Fol. Dic. v. 1. p. 42. Durie, p. 223.
