Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Walter Scot of Tussilaw v. John Grieve of Pinnacle
Date: 29 June 1694
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In the declarator of trust, pursued by Walter Scot of Tussilaw, against John Grieve of Pinnacle, a quaker, that the disposition he gave him of his lands was in trust, and only for his own behoof; the qualifications of the trust were partly founded on some missive letters of Grieve's, and on the smallness of the price; and that the narrative of the disposition does not bear an obligement to pay it, either to Tussilaw or his creditors, but only, that the land shall stand affectable for the creditors' diligence, in so far as may extend to 25,000 merks, &c. Pinnacle opponed the disposition, as simple and absolute, and bearing an onerous cause,—viz. the 25,000 merks, the undertaking of 1700 merks of yearly annuity to Tussilaw's grandmother, and the disponing the roum of Easter Pinnacle to Tussilaw, being worth 300 merks yearly; and denied any trust, farther than what ease he should drive Tussilaw's creditors to give him down; that it was to accresce to Tussilaw himself: and that this was all that his letters imported.
The case was intricate; and some were for allowing either party a mutual probation, before answer, as to the grounds inferring trust, or eliding it; but the plurality thought this was to involve them in a labyrinth of trouble and expenses; therefore, they found the trust proven, in regard the disposition could not import a sale, there being no price. And, in law, emptio et venditio subsis tere non potest sine pretio: and, therefore, reponed Tussilaw to his own right. (But I think this will not extend to rescind a posterior sale of a part of thir lands, made by Pinnacle, with consent of Tussilaw, to Michael Anderson; but only that Pinnacle shall count for the price received, and how far he has expended it in payment to Tussilaw's creditors.) And ordained them to count and reckon; and declared, that Pinnacle should have deduction and allowance of all payments, expenses, and disbursements, on Tussilaw's affairs, together with a consideration for his pains.
