Scottish Court of Session Decisions

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.

Charles Menzies, Writer to the Signet,
v.
Menzies of Kinmundy's Tutor and Alexander Gordon of Pitlurg

Date: 24 July 1703

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Charles Menzies, winter to the signet, against Alexander Gordon of Pitlurg, and others. Menzies of Kinmundy's estate being overburdened with debt, and the heir being left minor, the tutor obtains a decreet of the Lords, on cognition of the debt, allowing him to sell his pupil's estate in whole or in part to the best avail; for doing whereof in the most effectual way, he emitted placarts, and affixed them on the cross of Aberdeen, and other adjacent churches, for a voluntary roup on the 6th day of November 1701. Accordingly, Charles Menzies, uncle to the children, desirous to preserve the memory of his predecessors, that it might not go out of the family, he bids, after various offers, 2000 merks for the chalder; but with this quality, That it should be lawful to the tutor to sell them to any who should offer more, the said Charles being always acquainted with the said offer before acceptation thereof. On the 11th of November Pitlurg offers 2010 merks for each chalder, which is ten merks more than Charles's offer; and the tutor closes up the bargain, and gives Pitlurg a disposition. Charles thereon raises a process against the tutor and Pitlurg, for declaring his right to the lands, and for reducing Pitlurg's disposition, as being granted per crimen stellionatus against the common law and the Acts of Parliament, discharging double dispositions; and that he being the greatest offerer at the roup, he ought to be preferred.

It was alleged for the defenders,—That though Charles was the highest offerer at the first meeting, yet the tutor was not bound to prefer him to the bargain; for, though he sold it by way of voluntary roup, yet he was not tied to the formal solemnities of the judicial ones: he did, for his pupil's benefit, choose that method, which, by humour and emulation of outbidding one another, might raise the price, but he was not concluded to what should be precisely offered that day; but, by an express condescension of Mr Menzies, he was at freedom, if any greater price should afterwards be offered, like the Roman addictio in diem: and so it was, Pitlurg offered more, with which Charles was acquainted, neither did Charles find caution within the forty days prescribed for the price; and it is lesion to the minor to be forced to accept of a lesser price. Neither is there any stellionate in the case, seeing Mr Menzies's offer was resolutive and irritant, unless a higher offer was made; which was truly done; and so the tutor has made no double rights.

Answered for the pursuer,—That, by all the rules and analogy of law, the roup behoved to conclude that day; neither did Charles's consent, if there were any higher offer made, prorogate the roup beyond that day; for if he might accept of a better offer the next day after the roup, why not the next week? and, if so, why not the next month or year? and not only seven years after the roup, but so on to prescription, which insecures all buying at roups. And lawyers say, interpretatio ita est Jacienda ut actus valeat, et ut contractus non sit in arbi-trio venditoris. Neither is it sufficient to infer lesion that more was offered; for, 1mo, it has been decided, where a bargain has been once concluded at a competent price, it is no ground of resiling, that a greater is shortly after offered. 2do, The augmentation here is very inconsiderable, and all spent in this plea; and it is the minor's interest his uncle have it sooner than another; and Pitlurg was in mala fide to intrude himself, when he knew it was concluded; and the Lords, in 1700, in the case of Citthbert against Gordon, found it relevant to reduce the right of a second, because he then knew of the first disposition. And, as to the want of caution, Charles was always ready to find it; and the tutor ought not to object to this, seeing he has not required caution from Pitlurg.

The Lords declared in favour of Mr Menzies; and found that the tutor, after the elapsing of the day of the roup, could not sell the lands to another; Charles Menzies always finding sufficient caution for the price. And farther, the Lords found, That Pitlurg having offered and subscribed at the public roup, as Charles Menzies had done, Pitlurg was in mala fide to purchase these lands thereafter, unless there had been a new subscribed offer, and duly intimated ut supra.

Vol. II. Page 187.