Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Robert Milne v. The Sisters and Heirs of Mr James Stevenson
Date: 4 December 1696
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I reported Robert Milne, deacon of the masons, against the Sisters and Heirs of Mr James Stevenson, late secretary-depute for Scotland, for implementing a minute of sale of some houses in Edinburgh by Mr James's two factors, whose commission was only to lift his rents, &c.: But it was alleged,—That, having entered into a communing with Mr Milne, and he having offered ten years' purchase, they acquainted Mr James (who was then at London,) with the same; and he, by a letter, signified he thought the price too small, and expected twelve years' purchase, but left to them to do what they thought most for his advantage: whereon they entered with the deacon into a written minute, and sent an extended disposition to Mr James, to be signed by him; and he, by a second missive, intimated to them that he was displeased with the absolute warrandice inserted therein; and that the paper having fallen by his hand, he desired them to form a new one, with the advice of lawyers, and transmit it to him, so as he may have no more scruples. All which prove he ratified the bargain; and as he would have been forced to implement the minute, so must his heirs.
Answered,—The first letter gives them no absolute power to sell, but only to treat and commune; and the second letter can be no warrant, because the minute was entered into prior thereto; and it does not appear he then knew, or was acquainted that they had sold it by a minute; but he seems to look on it still as in the terms of a communing, and no consummated bargain; and men's heritage ought not to be sold on such general warrandice as these.
The Lords found the heirs of Mr James not obliged to implement this minute of sale.
The heirs would not have much quarrelled the bargain, either on the inequality of the price or otherwise, but in regard it was designed the same should not fall to them; for he had named his Lady executrix and sole legatrix, and she had agreed with Mr John Forrest, minister at Prestonhaugh, (who had married one of the three sisters and heirs-portioners,) and for a sum of money had made it over to him; and he claimed the price as moveable, and falling under executry, to the exclusion of the other two. And he contended it was as much moveable as if it had been money lying beside the defunct: though some of the Lords thought the price heritable aye till the bargain was perfected by an extended disposition. But this point was not determined at this time.
