Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 WARRANDICE.
Subject_3 The Purchaser of an Estate is entitled, on Eviction, to recover the Value as it stood at the date of Eviction; and he is entitled to be reimbursed for Meliorations before he quits Possession.

Trustees of Francis, Lord Napier,
v.
Mrs Margaret Drummond

Date: 7 February 1777

Click here to view a pdf copy of this documet : PDF Copy

[Supp. V. 636.]

Covington. I thought it a point as well established as any in the law of Scotland, that the damage must be estimated as at the time of eviction. In the case quoted by Lord Stair, the point in question related to a sum of money; but the lawyers on both sides admitted the rule as to lands. No purchaser would ever improve an estate, if the value at the time of the sale were to be considered as the rule at the time of eviction. There is an error which runs through the whole of the argument for the defenders: this case is supposed to be the same with that where the parties are not at one as to the thing sold: that is not the case here. The progress was very bad, and the purchaser was stumbled at it, and therefore he took care to have a clause of warrandice uncommonly anxious and large. An estate is low rented; I purchase it with the view of getting an advanced rent, and I possess for thirty years. After I have formed this plan, and run all risks, am I when the subject is evicted to get nothing but my original price?

Justice-Clerk. The doctrine of the defender, however plausible, would go far to overturn every thing that we have learned of law, in the case of eviction. I am also for the pursuers on the second point. Lord Napier did rashly in quitting possession, and so did Mr Drummond in not opposing it; but the defence is not sufficient. The doctrine of the civil law was very strict. The Roman lawyers thought that the right of retaining the estate was sufficient to secure; yet still justice says, that, although by any accident, a man should lose posession, still the value must be restored. I cannot see why action should be denied, even supposing me, by error or inattention, to have quitted that hold which the law gave me.

Monboddo. I never could buy land but with the view of improving it, and I should think it hard were I to get nothing on eviction but the price which I paid.

President. The principle in law is, that, in an action of damages for indemnification, the real loss must be the rule.

On the 7th February 1777, “The Lords found that the defenders are liable to the pursuers in payment of the value of the estate of Edinbellie, purchased by Mr Drummond from Mr Livingston, sold by Drummond to Lord Napier, and now evicted from Lord Napier, as the same stood at the time of eviction, with interest thereof from the time when Lord Napier ceded the possession thereof to Mr Livingston, and in time coming while payment adhering to Lord Elliock's interlocutor and to their own interlocutor of 6th August 1776.

Act. D. Rae. Alt. H. Dundas.