No Benefit of Discussion betwixt Heir and Executor.
William Baillie v. Margaret Henderson and Janet Jameson
Date: 1 July 1662 Case No. No 14.
An executor being pursued upon a minute of sale, was found liable to pay the price, tho' the bargain stood unimplemented in nudis finibus contractus, reserving action against the heir.
Click here to view a pdf copy of this documet : PDF Copy
By minute of contract, betwixt umquhile Jameson and Baillie, Baillie obliged himself to infeft Jameson in a tenement; for which Jameson obliged himself to pay 3000 merks of price. Jameson being dead, without any further progress upon the minute, Baillie pursues the said Margaret Henderson, as executrix to him, and the said Janet Jamieson, as heir, to pay to him the price. It was alleged for the executor, absolvitor; because, the bargain being incomplete, the heir must perfect it, and dispone the tenement, and so can only be liable for the price; for, by the performance of mutual minutes, the heir will only get the land, and therefore the executor should not be liable for the price, or at least if the executrix be decerned to pay the price, the pursuer must dispone to her the third part of the tenement in fee, and the two parts to the heir, she being the only child, and having right to the two third parts of the moveables; which moveables being exhausted, by the price of the tenement, the tenement ought to come in place of the price. The pursuer answered, That he could dispone no otherwise than according to the minute, but the executrix might betake her recourse against the heir, as she pleased, but both, as representing the defunct, were liable to him.
The Lords decerned the executrix to make payment, and would not bring the debtor betwixt the heir and her in this process, for the third of the tenement, or for her terce thereof, but reserved the same as accords.
