Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Andrew Houston v. Sir William Maxwell of Monreith
Date: 10 December 1695
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A bill being given in by Andrew Houston, against Sir William Maxwell of Monreith, complaining, That, though he had bought Sir Godfrey Mackulloch's lands at a roup, and that he was one of the preferable creditors for £7000, yet he refused to pay him, on the pretence that he had not got a sufficient progress of the rights and evidents of the lands delivered to him.
The Lords considering this as a general case concerning the whole lieges, and all purchasers by roups, they desired to hear it in their own presence; and accordingly, being debated this day, the inconveniences on both hands occurred to the Lords. For, as no man should be compelled to pay a full and adequate price for lands where he gets not the writs of the same, and there may be better rights on the estate than what stood in the bankrupt's person; so, on the other side, neither the Act of Parliament 1681, anent such roups, nor the style in which they are conceived, oblige the creditors to give the buyer the charterchest; but he gets some satisfaction as to the debtor's right before he offers at the roup; and he also receives the creditors' warrandice effeiring to their sums assigned,—though that may turn irresponsal and insufficient. On the other hand, a bankrupt, of purpose to obstruct the sale of his lands, may abstract and abscond his writs in such a manner that the creditors (who are strangers to him,) may not know where to seek them. Some proposed, that, if the buyer were not pleased with the security the creditors could make him, he was to cede the possession; for the paying their annualrents is not sufficient, seeing a man may stand in need of the principal sum. Others moved that he should renounce the whole roup in favours of the creditors. But then, a buyer, finding himself any ways lesed, might repudiate the bargain, and get himself reponed, and disappoint the creditors of their expectation of being paid; and might collude with the debtor to keep up the writs, and then pretend he saw no progress; and this would either bring it to a division of the land amongst the creditors, (which is very hard to be effectuated,) or expose it to a new sale at a less value, because of the lameness and defect of the progress; after which the bankrupt, by offering to discover where the writs were, might make a new bargain for himself, which would be so much of the price stolen from the creditors. However, the Lords saw no reason why a buyer should both keep possession of the lands and detain the price; but, if he would renounce, then it would be some check that he do it re integra, paying the annualrents of the price to the creditors, and not barely counting for the rent of the lands, which ordinarily is below the annualrent of the price. But, on the whole matter, the Lords desired information to be given them before they made a general rule in this case.
