Subject_1 HERITABLE and MOVEABLE. Subject_2 SECT. XVI.
Price of Heritable Subjects.
Chiesley v. His Sisters
Date: 22 December 1704 Case No. No 91.
A party who entered into a minute of sale, obliging himself to dispone lands, after uplifting part of the price, died intestate. Found that the price, yet lying in, the purchaser's hands, was moveable, though the defunct had not granted a disposition of the lands.
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Thomas Chiesley, heir to Major Chiesley late of Dalry, against his Sisters, executors to the said Major. Major Chiesley enters into a minute of agreement with Sir Alexander Brand, whereby he obliges himself to sell and dispone to him his lands of Dalry, being 48 chalders of victual; and Sir Alexander, on the other part, obliges himself to pay the price, being 3000 merks for each chalder, to the said Major, his heirs and assignees. Sir Alexander, having charged Thomas Chiesley, as heir to his brother, to dispone and denude; he answers, He cannot be forced to dispone till he get the remaining part of the price unuplifted by his brother paid to him. Replied by Sir Alexander, Your Sisters, as executors to the Major, likewise claim it, and you must debate the competition; which resolved in this single point, Whether the price in this case was heritable, so as to fall to Thomas the heir; or moveable, so as to belong to the Sisters, as the Major's executors? It was contended for the heir, That though the price of lands, either in lying money, or due by a simple moveable bond, will belong to the executor, because in either of these cases the party to whom the price is due has declared his intention; as also if lands be sold by a perfect and complete disposition, containing procuratories and precepts of sasine, whereon the buyer may be instantly infeft, and an obligement for the price, though the seller's heir be liable in warrandice, yet he will have no claim to the price, but by the presumed will of the party it Will fall to his executor there is as little doubt, if an heritable security be taken far the price, either bearing an obligement to infeft, or excluding executors, that in either of these cases the price will belong to the heir; and sicklike, where there is no actual present disposition, but only an obligement to dispone and make a right, and “for the which cause” the buyer is to pay the price; if the seller die before perfecting the right, his heir, who only can perfect it, must also have the price, seeing, in dubio, he is presumed to prefer his heir more than his executors; otherwise he exposes his heir to ruin, who by serving becomes liable to all the debts, and yet gets not the price; and natural equity says, he who makes the right should get the price, it being only due sub conditione if the lands be disponed. Answered for the executors, That the distinction betwixt an obligement to dispone and actual disponing was too nice, for they are equiparate in law; and it is no strange thing that executors may obtain the price, and yet compel the heir to enter and implement, to the effect they may get the price; and though money consigned for redemption of a wadset remains heritable aye till declarator, yet there is no parity in the price of lands; for the debtor's consigning ought not to alter the creditor's succession; but if the wadsetter use requisition, then it is certainly moveable, though the heir must give the renunciation; both of them appealed to Lord Dirleton, in his Doubts and Questions, voce Heir and Executor. The Lords, by a narrow plurality, found the price of Dalry, yet lying in Sir Alexander Brand's hands, moveable, and due to the executors. See M'Intosh and Somerville against Primrose, No 16. p. 5087. where the price of land was found moveable, affectable by arrestment, to fall under single escheat, and not to be subject to inhibition. Some urged, quid impedit but the purchaser and the heir of the seller may agree betwixt themselves to cancel the minute? but there being a jus quæsitum to the executors, no such agreement as was contended, could prejudge them. But in the case where the price is found moveable, the heir must be kept indemnis, and refunded of all the expense he is put to by serving heir, conveying and disponing the lands, or any debts he is by his service exposed to, whereof the executors who get the price ought to relieve him.
Fol. Dic. v. 1. p. 371. Fountainhall, v. 2. p. 250.
