Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Sir John Clerk of Pennycuik, and Archibald Primrose of Dalmeny, Petitioners
Date: 10 July 1694
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Sir John Clerk of Pennycuik, and Archibald Primrose of Dalmeny, gave in petitions, representing that they had made the greatest offers at the roups of the baronies of Nicolson and Laswade, and had the price ready to pay; but the creditors not being ranked according to their preference, they knew not whom to pay it to; and therefore craved liberty to consign the principal, that they might be free of the annualrents in time coming: seeing, the rent of the lands they had bought at so dear a rate, the one at 24 years' and the other at 22 years' purchase, will not pay them four of the hundred; whereas, if they be at the creditors' reverence, who may delay long enough in ranking, they must, during all that time, pay six per cent.: which is a most unequal damage to the buyers, and will discourage all bidding at roups. Yet, on the other hand, the Lords considered it would be an intolerable prejudice to creditors, to have their money lying consigned, without interest: and that the buyers at the roup knew their hazard, and yet offered; for, it is not only an article of the roup, that the price was to be paid to those who shall be found to have the best right, but the bond and caution they give for the price bears the same quality and condition; upon which the Lords found that consignation would neither exoner them for principal nor interest. But the true way to prevent this loss to the buyers is, to ordain, that no sale shall proceed by roup till the creditors be first ranked.
The second point that occurred between these buyers and the creditors, was, There were 3000 merks of liferent annuities, payable out of these lands, and the creditors only allowed him to retain 50,000 merks of the price, as the principal sum corresponding to the said annualrent of 3000 merks; whereas he has bought the said 3000 merks at 22 years purchase, the stock whereof is 66,000 merks; and, therefore, he ought to retain that sum, free of paying any annualrent for the same, during the liferenter's lifetime, else he will clearly lose the annualrent of 16,000 merks. But the Lords considered, that no such thing was proposed at the time of the roup, but great emulation who should be preferred; therefore they repelled this calculation, and found, that no more could be free of bearing annualrents but a stock answering to the liferent-annualrents, and not in relation to the years' purchase by which he bought it.
The third controversy between them was, The buyer craved some deduction of the price, because some of the lands held ward; which he did not know the time of the roup, else he would not have bid so great a price. Yet the Lords thought, where a party does not know the holding of lands, they ought to presume they are ward. But this was reserved to further consideration.
