Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 WINTER SESSION. - Anni 1973.
Dougall M'Pherson v. -
1676.
January.
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A husband sells land; and obliges himself, in the disposition, to obtain his wife's consent, she being infeft therein. She utterly refuses to consent. He is charged, denounced, taken with caption, and imprisoned, on the not implement of that clause. He offers to refund the price he got, cum omni causa. Quæritur, When factum in obligatione deductum becomes imprestable, at least valde difficile, if venditor fungitur et liberatur præstando interesse. Jure non licet a contractu perfecto resilire, nec est locus pænitentiæ: initio, est voluntatis, postea fit necessitatis, L. 5. C. de Obligationibus et Actionibus. If the Lords, ex jure prætorio, by a mixture of equity, would repone them each to their own place, nescio. But if he can find caution, or give warrandice in case of the existence of a distress, by her evicting her liferent upon his decease before her, I think it should assoilyie and satisfy, since dubius est eventus if ever she has right to that land sold and disponed. But I think the Lords would not force her to consent, unless the husband offered her as much elsewhere, uncontroverted and clear.
They say, the parties were Dougall M'Pherson and ——
