Whether the sale understood a lump bargain or by rental. When subjects turn out disconform to the rental. When part of the subject has been evicted. Relief to a purchaser for an incumbrance not known at the time of sale.
James Couts, Purchaser of Halgreen, v. The Creditors of Halgreen
Date: 13 January 1725 Case No. No 25.
No deduction allowed where the rental decreased after probation, but before the sale.
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The estate of Halgreen having been long in the hands of creditors, was at last brought to a public judicial roup; and one for Mr Cout's behoof was preferred, as the highest offerer, and Mr Couts gave bond for the price. The purchaser finding that there were considerable inlacks and deficiencies of the rental contained in the letters of publication, insisted against the Creditors for a deduction from the rental, and of L. 23 Scots of the schoolmaster's salary, which had not been allowed, alleging, That by the fraud of the Creditors he was led in to make so disadvantageous a purchase; for, though the rental in the letters of publication was agreeable to the proved rental, yet the proof having been taken seven-and-twenty years before the sale, the rents in that time had fallen considerably; and of this the creditors were in the knowledge, as appeared from their inserting an unusual clause in the articles of roup, viz. that the purchaser was to take his hazard of the deficiencies of the rental, and of any superplus burdens thereon, which might have happened since leading of the probation; which article, though it was struck out by authority of the Lord Ordinary before the roup proceeded, yet it was a sufficient evidence, that they knew what disadvantage would attend the purchaser.
It was answered for the Creditors, That there was no ground for any abatement, since the sale had proceeded after all the solemnities required in law; that the rental in the letters of publication was agreeable to the proved rental; and that being the only rule that creditors have to walk by, in exposing of bankrupt estates to sale, the purcharer must take his hazard of any deficiencies happening betwixt the proof and sale. As to the schoolmaster's salary, it was abundantly compensated by other advantages.
The Lords found, that the purchaser could have no deduction from the proved rental, by falling lower after the probation, and before the sale; but found, that there must be a deduction given of any burden not formerly allowed before the sale.
Reporter, Lord Pancaitland.Act. Graham, sen.Alt. Horn.Clerk, Gibson.
Edgar, p. 148.
