Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JAMES DALRYMPLE OF STAIR.

Joseph Marjorybanks
v.
Rankin

Date: 28 November 1679

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By a minute of contract, Joseph Marjorybanks sells to Rankin the lands of Fields, &c. and obliges himself to give him a sufficient right thereof; and, by a posterior clause, obliges him to deliver the same progress of right that he had from his author, for which Rankin was obliged to pay him such a price. Whereupon Marjorybanks charges for the price. Rankin suspends, and raises a declarator, that the minute should be declared void, for not-performance of Marjorybanks's part, viz. delivery of a sufficient right; seeing the progress offered is defective. 1mo. Because the apprising of the original right is null, and not subscribed by the messenger, as judge thereto. 2do. Marjorybanks's right is by an assignation to the apprising, which assignation is not produced.

It was answered for Marjorybanks, That he produced the attested double of the assignation, with an infeftment of the land, expressing the assignation; and that he was willing to get the consent of the apparent heir of the cedent, ratifying the right; and was willing to give special warrandice in his other lands. 2do. He offered the same progress that he received from his author, conform to the last clause in the minute, which must qualify and restrict the former clause. And as to the apprising, the vestige of the messenger's name remains, and has been but worn out by time; and there is an allowance of the Lords on the back thereof: and a progress, near forty years, thereupon, with possession.

The Lords found Marjorybanks obliged to make a sufficient right, and that the posterior clause was not restrictive, but cumulative; and found the offers made, did not oblige the buyer to accept thereof: but, seeing there was no clause irritant, they did not declare the minute presently void, but gave the first day of February to produce the assignation, or prove the tenor thereof; but gave no answer to the other point, till the apprising was produced.

Vol. II, Page 710.