Subject_1 JUS QUÆSITUM TERTIO. Subject_2 SECT III.
Clauses in Deeds in favour of third parties.
Ogilvie and Grant v. Ker
Date: 7 July 1664 Case No. No 17.
A purchaser of lands was taken bound to pay a part of the price to a creditor of the seller. This was found a delegation in favour of the creditor, not a mandate which could be recalled.
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There being a charge in the name of James Ogilvie and William Grant contra Mr Andrew Ker minister, on this ground, that by a minute of contract of alienation, Ogilvie had sold to Ker certain lands, and Ker was expressly bound by the minute to pay this Grant and others, in part of the price of the land, certain debts due by Ogilvie to them; Ker suspends, upon this reason, that he had satisfied Ogilvie, and obtained his discharge.
Grant answered, That by the foresaid clause contained in the minute, he had acquired right to the sum in satisfaction of his debt, which Ogilvie his debtor could not take away, without his consent, especially seeing the minute took effect; and the suspender, by his missive letters, after the date of this discharge wrote to the Laird of Pitmeddin, who was cautioner to Grant, that he would satisfy the debt. The suspender answered, That the clause in favour of Grant, who was no contractor, could not give him a right; 1mo, Because it was never a delivered evident to Grant; 2do, Because it was but a mandate, whereby Ogilvie the contractor did order a part of the sum to be paid to Grant, which Ogilvie might recal at his pleasure, as he might have annulled the bargain, and destroyed the writ; especially seeing nothing had yet followed; and as for the letters, they were not written to Grant but to a third party.
The Lords found, that seeing the bargain took effect, the clause in Grant's favour was not a simple mandate but a delegation, whereby Ogilvie constituted Ker his debtor, to be debtor to Grant his creditor, which needed no intimation, being contracted by, and so known to Ker himself; and therefore found Ogilvie's discharge ineffectual.
