Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 I sat in the Outer-House this week.
James Maxwell v. John Ramsay of Galry
Date: 9 February 1703
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John Ramsay of Galry having bought a piece land from Semple of Fulwood, he pays the price, except 1000 merks, for which he gives bond, expressly bearing, in the narrative, that it was for the remainder of the price. This bond Fulwood assigns to James Maxwell, merchant in Glasgow, who charging Galry on it, he suspends, that, being the price of lands, it must stand affected and subject to purge and clear the incumbrances; et ita est, he condescends on an apprising thereof belonging to Fodderance, yet unsatisfied.
Answered,—An assignee for an onerous cause to a simple and absolute bond, clogged with no such quality as to be liable to purge incumbrances affecting the subject disponed, cannot be stopt from payment on any such pretences; for it has a fixed term of payment, which could not have been, if the exacting it depended on the uncertain event of emergent incumbrances; and, if it had been the meaning of parties, that it might be retained on that account, there would have been an express clause inserted in the bond to that purpose.
Replied,—If the bond had bore borrowed money, the assignee would have had a good defence, that his money could not be stopt, by offering to prove it was a part of the price of lands; but, when it expressly et nominatim bears that to be its cause in gremio, it can admit no rational construction save that it was so qualified of purpose to subject it as the mutual reciprocal cause to clear the purchase of all incumbrances.
There were decisions adduced for either side; as the case of the Lord Bal-landen-and Arniston in November 1688, and of Sir Patrick Hepburn, Sir John Hall, and James Brown, since the Revolution,—that a bond payable at a precise term, and bearing annualrent from the date, containing no obligement to purge, cannot stop any assignee for an onerous cause. On the other hand, Stair, book 1. tit. 10. thinks a bond, acknowledging it is for the price of lands, makes a nexus realis even against an assignee, and cites the 28th November 1676, Carmichael against Dempster of Pitliver.
Though many of the Lords inclined to be of this last opinion, yet, before fining of a rule, they resolved to hear it in their own presence.
