Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR ALEXANDER GIBSON, OF DURIE.

Adam Bothwell
v.
John Oliphant

Date: 16 Feb 1627

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In an action, at the instance of Adam Bothwell against Mr John Oliphant, for the subscribing of a contract, and registration thereof, whereby the lands of Burghtoun, being sold by Alexander Mowat to the said Mr John, and Adam Bothwell being a contractor therein, for all right he had to these lands; in a clause thereof, Margaret Crawford, who was tercer of her terce of the said lands, is set down to have disponed her terce to the said Mr John, with consent of the said Adam, who hath not subscribed the contract, but only Adam who is nominate in that clause to be a consenter with her; and therefore the said action being for subscribing that part of the contract whereby Mr John is obliged to pay the yearly duty specified in the contract for her terce, the said Mr John contended, that, seeing she had not subscribed the same, he had place for repentance, and needed not to subscribe the contract, to be thereby obliged to pay the terce-duty, but might lawfully resile. This allegeance was repelled, seeing Adam Bothwell, albeit in that clause he was nominated only consenter with the lady tercer, yet he was reputed a principal party, in respect at the beginning he was named a special party-contractor for all right which he had to the lands; and seeing he did show where the lady tercer had disponed her right to him, before that contract libelled, to whom he was obliged to pay that same duty which Mr John was obliged to pay to her; and seeing he had subscribed the said contract;—therefore the Lords found, that the said Adam Bothwell's subscription was sufficient to enforce subscription, and also registration against the said Mr John, to the effect he might relieve the said Adam of paying of the said duty; and they ordained the said Adam to dispone the said right of terce to the said Mr John, in any lawful manner he pleased, beside and after the disposition contained in the contract; and so sustained the action, albeit the tercer had not subscribed the contract, which they found not necessary, nor to be any impediment to liberate him from subscription.

Act. Lawtie. Alt. Stuart. Gibson, Clerk.

Page 277.