Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION.
William Wood and William Shanks v. Alexander Murdoch
1676 and 1681.
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1676. December 12.—Alexander Murdoch having bought a tenement in Kirkcaldy from William Wood and William Shanks, as apparent heirs to Alexander Law, their good-sire, they enter in a contract, by which they sell the tenement, and oblige themselves betwixt and a day to enter themselves heirs, and be infeft and complete the security; and Murdoch obliges himself to pay the price. Murdoch, being charged on this, suspends, 1 mo, That they have not perfyted the right, nor cannot make him a good and uncontroverted progress, being minors.
Answered,—They opponed their service, retour, and infeftment, with their grandfather's seasine, &c. and their curators should consent. Replied,—The service did not prove the blood, &c. Duplied,—It was a decreet, and probative so long as it stood unreduced. The Lord Forret found this sufficient.
Their second reason was, That, since the contract, the house sold was damnified by an accidental fire had happened in the neighbourhood.
Answered,— Post venditionem, licet nondum facta fuerit tradilio, damnum fa-tale et casus fortuiti ad emptor em spectant; —§ 3 tia, Institut. de Emptione, Venditione.
Forret repelled this; and Stairs, tit. 10, Of Conventional Obligations, § —, speaking of Sale, thinks such chances follow the seller till tradition.
2 do, answered,—Offered to prove the house was in as good case as when it was sold,
Forret, before answer, ordained a visitation to be directed to the bailies of Kirkcaldy, to take inspection of the house, and to try in what case it was the time of the sale, and how much it is now deteriorated, to the effect they may consider the damage.—It had been easier to have offered to deduct off the first end of the price whatever damage should be found; especially considering the house was ruinous the time of the contract, and his design in buying it was to throw it down and rebuild it, though now he would be rid of the bargain. See the information. Vide supra, num. 503, 8th November I676, Moodie, Somervell, and Gilchryst.
What if a Stirling or pyot should have pulled out some straws, to build her nest with?
Advocates' MS. No. 519, folio 269.
1681. February 15.—In the cause Wood and Shanks against Murdoch, (12th Dec. 1676,) the Lords, on Forret's report, in regard the progress produced is not from Alexander Law, in the terms of the minute of sale, which, being special, ought to be performed in forma specifica, and not per æquipollens, but from Davidson; find the bargain to be dissolved, and that the other party is free; and therefore suspend the letters simpliciter hinc inde, at either party's instance, against others, upon the said minute.
Yet one would think the giving them both a progress from Law, and Davidson's right likewise, is more than condition; which should not annul the minute, having no irritant clause. Only, it was answered, Law's right was merely of an annualrent, whereas, if the property had flowed from him, they would have relied on his warrandice; but Davidson has none to represent him. But this last could not import, for Alexander Law hath as few. Vide 8th July 1671, Pitrichy; and 23 d June 1681, Forbes.
