Scottish Court of Session Decisions

Subject_1 SALE.
Subject_2 DIVISION I.

Sale of Heritage.
Subject_3 SECT. IV.

Sufficient progress. - Sufficient title.

B Rowand, Widow, and Robert and James Rowands, Nephews of the Deceased James Rowand, Chargers,
v.
James Cochrane, in Paisley, Suspender

Date: 24 November 1769
Case No. No 19.

Lands being exposed to sale, and the articles bearing that the purchaser was to accept such progress as could be delivered, and to be debarred from objecting on that account, found to be an effectual sale, though the progress was defective.

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James Rowand having exposed to sale a tenement in Paisley, by way of public roup, the articles of sale were drawn up, by which it was provided, “that the seller should be liable in warrandice from fact and deed allenarly; and to deliver such writs as he bad in his custody, conform to inventory therewith produced, and shewn at the roup, consisting of seventeen in number, with the sufficiency of which progress the purchasers were to satisfy themselves before the roup; and, by their becoming offerers, were entirely debarred from making any objections against payment of the price on that account.” An inventory of the progress was accordingly made out, and adjusted by the seller, as referred to in the articles.

At the roup, which was publicly advertised, and several times adjourned, the subject was purchased by James Cochrane, as the highest offerer. The price was reasonable; but he refused, when charged, to grant bond for the price; alleging, that the progress was manifestly insufficient, and such as shewed that the property was not in the seller. He also alleged fraud in inducing him, ignorant of business, to offer on a progress so clearly defective.

The progress stood thus: From the 1696 it was regular till the 1735, when the property vested in Mackie. Mackie conveyed it to Messrs Crawford and Dunmore, his brothers-in-law; they, in 1742, to Cameron; and Cameron to Rowand in 1760. The conveyance from Mackie to Messrs Crawford and Dunmore was wanting; though it appeared, from the books of these gentlemen, that they had stated the price of the subject to Mackie's credit; and that Mackie and his heir, from the year 1743 downwards, had acquiesced in the sale made by them to Cameron.

It appeared that Rowand himself had purchased the tenement upon the same progress which he now offered to Cochrane; that he had possessed it five years, and his authors twenty years, without challenge; that at the roup the articles and inventory had been publicly read over, and the writings themselves produced and looked at by several of the offerers before the sale began.

The Lord Ordinary pronounced the following interlocutor: “Having specially considered the conditions of the roup, by which the buyer was to accept of the progress contained in the inventory, and debarred from any objections to the payment of the price on that account; and that though the progress is defective, no fraud appears on the part of the seller, by which the suspender can be reponed; finds the letters orderly proceeded.” Having afterwards taken the cause to report the Lords unanimously adopted the Lord Ordinary's interlocutor, pronounced it of new, and gave the expense of extract.

Lord Ordinary, Auchinleck. For Rowand, Ilay Campbell. Clerk, ——. For Cochrane, Cullen. Fac. Col. No 4. p. 10.