Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 This week I sat in the Outer-House, and so the observes are the fewer.
Sir William Murray of Newton v. Lord Edmonston
Date: 13 January 1699
Click here to view a pdf copy of this documet : PDF Copy
My Lord Edmonston having entered into a minute with Sir William Murray of Newton, and Charles Murray of Hadden, his brother, for the lands of Newton, for payment of 29,000 merks; Sir William makes a second disposition of the same, and raises a reduction of Edmonston's right, that he was circumvened by his brother Charles to enter into that minute, who had applied the price for payment of his own debts allenarly; and so, being dolo inductus, the same ought to be reduced.
Alleged,—The reason is noways relevant against my Lord Edmonston, who was in bona fide to contract with Charles Murray, who stood infeft publicly in the lands: and it was only ex superabundant that he required Sir William to be a joint disponer; and if there has been any fraud and over-reaching by the one brother to the other, John Wauchop of Edmonston is not concerned therein, unless he can subsume that he was induced to enter into the said minute by some fraudulent deed of my Lord Edmonston's.
Answered,—He does not controvert Edmonston's bona fides in entering into the bargain; but if there was fraus in any of the parties-contractors, that was sufficient to resolve the whole bargain; for nemo debet lucrari ex dolo alterius: and he is willing to refund him all he has paid out on the account of this transaction, and to keep him indemnis.
Replied,—Edmonston is not seeking lucrari cum alterius dam.no, he having paid the full adequate price; et dolus non debet obesse ei qui eum non causavit: and though there be nothing more contrary to a free consent than dole, yet what was antecedent to his bargain, and private betwixt the two brethren, can have no influence to annul his minute; but he is content to quit the land, and repone them, he being immediately refunded his money, cum omni causa, and the expenses they have put him to.
The Lords repelled the reason of reduction, and sustained the minute; but, in respect of his voluntary offer, appointed one of their number to see Sir William reponed again to his own place, he paying back, betwixt and Candlemas next precisely, the whole money Edmonston has advanced, with the just expenses he has debursed on this account; and, in case of failyie, he to be free of his offer.
