Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 SALE-WARRANDICE.
Subject_3 In an action of damages upon the Warranty, for the eviction of an heritable subject, - when the eviction is understood to have taken place, - and at what period the value of the subject evicted is to be regarded, so as to ascertain the amount of the pursuer's claims?

Alexander Hill
v.
James Yeaman and William Hog

Date: 18 December 1769

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[Fac. Coll., V. 23; Dictionary, 16, 631.]

Monboddo. The rule of law is undisputed, that the seller is liable to pay to the purchaser the price as at the eviction. If the delay in the former cause had been owing to the fault of the purchaser, there might be reason for the interlocutor—but the fact is, that it was the seller, not the purchaser, who undertook the defence of the cause. The sequestration decided nothing. The final eviction must be the rule.

Justice-Clerk. I think the eviction must be held as taking place from the first interlocutor of Lord Minto, Ordinary, restricting the adjudication to a security. From the time of that interlocutor, acquiesced in, the purchaser could not expect to continue in possession: the value of the subject must be estimated as at that time.

Auchinleck. After that the adjudication had been restricted to a security, it was impossible that the parties should ever suppose that there was a right of property. Suppose that there had been a decreet of reduction, without the word decern, there could have been no extract. Nevertheless bona fides would have ceased.

Kaimes. After the interlocutor restricting to a security, the purchaser had the subject as a security for his debt, and therefore had no concern in the rise of the rents.

Lord Hailes, Ordinary, found “that the pursuer ought not to profit by the casual rise in the value of houses at Dundee, during the unsuccessful litigation which he and the defenders jointly maintained in the former process; that the eviction of the subjects is to be held as taking place at the date of the sequestration, and that the pursuer is entitled to the value thereof as at that period.”

On the 18th December 1769, the Lords altered in part, and found eviction as at the date of the interlocutor restricting adjudication.

Act. J. Douglas. Alt. J. M'Laurin.