Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR PETER WEDDERBURN, LORD GOSFORD.

Lewis Nisbet
v.
Mr John Wishart

Date: 30 June 1674

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In an action, at the said Lewis's instance, against the said Mr John, from whom he had purchased an heritable right of the lands and teinds of Drimmie, to hear and see him found and decerned to accept of a disposition back again of these same lands, or to refund the price thereof that he had gotten; or otherwise to procure to him a three nineteen years' tack of the teinds from the titular, upon an alleged promise made by the said Mr John in the terms foresaid.—

It was alleged for the defender, That any such promise being but verbal, and not put in writ and subscribed, was not obligatory in law; there being always locus penitentiæ as to all dispositions of lands or heritable rights, notwithstanding of any communing or verbal transaction; until the dispositions, contracts, or bonds, be subscribed by the contractors.

It was replied, That the promise libelled, being alternative, either to procure a tack of the teinds, or to accept of a disposition of lands, it was sufficiently relevant to be proven by the defender's oath, without any writ; and the promise, in the first place, being to procure a tack of the teinds, which in law was obligatory, albeit the other party accept of the right of lands, could not be binding, except writ had intervened; yet the adjection thereof to the first member of the alternative gave the defender only power to resile from that part, in case he thought it better for him to procure a tack to the teinds, than to accept of the heritable right of lands.

The Lords did find, That such a promise being complete, albeit it was alternative, was not at all obligatory to infer that the defender should receive back again a disposition of the lands sold, and refund the price; or to procure a three nineteen years' tack of the teinds; unless it had been put in writ by way of contract or bond.

Page 420.