Contract performable at different periods. - Effect of non-performance, and of over-performance. - If the one party repudiate, is the other free? - Whether irritancy implied by failing to perform at the day. - Effect of improper performance. - Contract for mariners wages. - Contract between master and servant. - Contract of affreightment. - Contract not signed by all parties. - Obligation ad factum pręstandum.
Creditors of Jordanhill v. The Viscount of Garnock
Date: 9 December 1747 Case No. No 32.
When one party becomes unable to perform, the other has an action to be declared free.
Click here to view a pdf copy of this documet : PDF Copy
In 1708, John, first Viscount of Garnock, who stood infeft in his estate under a strict entail made by his grandfather in 1662, but not registered in the register of tailzies, entered into a minute of agreement with Laurence Crawford of Jordanhill for disponing to him against Martinmas then next, the forty-shilling land of Knightswood, part of the barony of Drumry in Dunbartonshire; for which cause Jordanhill became bound to pay 19 years purchase, and to thirle his lands of Jordanhill to the Viscount's mill of Drumry; but all this while the minute had not been implemented, the Viscount, and his son after him, continued to possess; and though Jordanhill, in the son's minority, obtained decree for implementing, and thereon adjudged, yet no payment or consignation was made of the price, nor did he thirle his lands to the mill of Drumry, which was now become impracticable, as the mill was sold away from the family for payment of debt, under authority of an act of Parliament.
In these circumstances, the Creditors of Jordanhill, now pursuing a sale of the estate of Jordanhill, comprehended the lands of Knightswood, being willing to pay the price; and the present Viscount of Garnock being made a party, repeated a reduction of the minute; and the question was, Whether action now lay against him for implement of the foresaid contract.
As to which, the Lords were generally of of opinion, that a purchaser, by a minute not implemented in the seller's time, is neither purchaser nor creditor in the sense of the exception in the act 1685: That when the act 1685 saves creditors and purchasers, it means only creditors who have advanced their money, which they must either lose, or recover it out of the tailzied estate; and purchasers who have paid the price, and who therefore are in the same situation with creditors as to the price paid, but not purchasers who stand only in nudis finibus contractus, and who, though creditors in warrandice, are to lose no money when they do not prevail; for as to these, the obligation on the heir by the minute to implement cannot prevail over the Obligation he is under by the tailzie not to implement; yet the Lords, who avoid determining general points, when there is no necessity for it, did not specifically determine this point, being of opinion, that now after so long a time, and through Jordanhill's omission to implement his part, while it was practicable, there lay no action to his creditors against the Viscount, and therefore pronounced an interlocutor in the following general terms:
“Found, That the Creditors could not now insist for implement of the minute; and therefore sustained the reasons of reduction, and decerned.”
Fol. Dic. v. 4. p. 16. Kilkerran, (Mutual Contract.) No 4. p. 358.*** D. Falconer reports this case:
Sir John Crawfurd of Kilbirny, 1662, entailed his estate, with irritant and resolutive clauses, which were inserted in the sasine of Margaret his daughter and heir of tailzie, and she dying 1680, was succeeded by her son John, Viscount of Garnock, who was infeft secundum formam et tenorem priorum infeofamentorum dict terrarum, et sub et ex provisionibus et conditionibus in iisdem content;’ and 1708, obliged himself to dispone the lands of Knights-wood, part of the entailed estate, with real warrandice on the remainder, for 19 years purchase and L. 10 Scots of feu-duty, and for the purchaser his thirling his estate of Jordanhill, &c. to the Viscount of Garnock's mill; and on this minute, Jordanhill took a decreet against Garnock, and thereupon adjudged, but without paying any part of the price, nor did he ever enter on the possession of the lands.
A process was brought by the Creditors of John, to have it found their debts might be recovered out of the estate, notwithstanding its being entailed, as the irritant and resolutive clauses were not contained in his infeftment; and a decreet was obtained of that import 1736, affirmed by the House of Peers 1740, whereupon the heir of tailzie obtained an act of Parliament for selling part of the estate.
Jordanhill becoming bankrupt, his Creditors raised a sale of his estate, comprehending therein the lands of Knightswood; whereupon the Viscount of Garnock insisted in a reduction of the minute, as being entered into by an heir of tailzie, who was incapable to dispone.
Answered; By act of Parliament 1685, the deeds of heirs of tailzie are effectual in favour of onerous creditors, unless the clauses irritant be inserted in their infeftments, and the creditors do not only insist upon the minute, but upon their author's adjudication, as the statute is expressly in favour of apprisers and adjudgers, and other singular successors.
Replied; Jordanhill is not entitled to the privileges of an onerous creditor, as he did not implement the minute, by paying the price; neither can the adjudication better the case, which, if adverted to, ought not to have passed without payment or consignation of the money, especially considering the Viscount has, by authority of an act of Parliament, sold his mill before this process; so that the thirling the estate of Jordanhill thereto, which was part of the agreed price, cannot now be implemented to his benefit.
The Lords found the pursuer could not now be compelled to fulfil the minute, and therefore sustained the reasons of reduction.
Reporter, Tinwald.Act. W. Grant.Alt. Lockhart.Clerk, Hall.
D. Falconer, v. 1. No 220. p. 304.
