Actio redhibitoria et quanti minoris. - Error in substantialibus.
Hepburn and Sommerville v. Campbell of Blythswood
Date: 4 July 1781 Case No. No 10.
Error in substantialibus.
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Upon the death of James Campbell of Blythswood, his apparent heirs of line were advised to bring the unentailed estate to sale, under the act 1695, cap. 24. Part of this estate, consisting of some borough-acres in the neighbourhood of Renfrew, was purchased by Mr Campbell, the heir of entail; but, before the sale came to be reported, or any interlocutor pronounced, it was discovered, that a mistake had been committed in fixing the upset price according to the proved rental of two acres and a half; whereas the subjects really amounted to seven acres. A question, therefore, arose, whether Mr Campbell, in virtue of his purchase, had right to the whole, or to a part only of these acres?
Mr Campbell contended, That he had right to the whole; because the different parcels composing the seven acres, were all specially enumerated in the summons of sale; and because, in the letters of publication, and in the minutes and articles of roup, all the unentailed acres are said to be exposed.
The apparent heirs, on the other hand, referred to the advertisement in the newspapers, wherein the lands exposed to sale were limited by a specification of their proved rental, and to the state of the process, to show that said rental applied to no more than two acres and a half.
Observed on the Bench; Every sale, whether voluntary or judicial, may be set aside by an error in substantialibus; nor will even a decree of sale be sufficient to bar a purchaser from pleading such an error; as was determined in the case of Dalmahoy*. But here no decree has been pronounced; there seems to have been an error on both sides; and neither party is entitled to take advantage of the other's mistake.
The Court found, “That no more of the borough-acres were sold than to the extent of two acres and a half, and that the remainder of these acres still remained to be sold; but that it was optional to Blythswood, either to hold the purchase, or to reject the same, as he should think fit.”
Lord Ordinary, Monboddo.Act. Ilay Campbell.Alt. Tait.Clerk, Campbell.
Fol. Dic. v. 4. p. 257. Fac. Col. No 69. p. 113.
