Whether the sale understood a lump bargain or by rental. When subjects turn out disconform to the rental. When part of the subject has been evicted. Relief to a purchaser for an incumbrance not known at the time of sale.
Lloyds v. The Apparent Heir and Creditors of Paterson
Date: 13 February 1782 Case No. No 29.
Whether deduction be given on account of a partial eviction, when the subject has been valued and sold in cumulo?
Whether any distinction be made in this matter between a sale pursued by an apparent heir, and one at the suit of creditors?
Click here to view a pdf copy of this documet : PDF Copy
At a judicial sale, at the instance of an apparent heir, there was sold to Messrs Lloyds, at the price of L. 600 Sterling, “all and hail the property of the splint-coal, and hail and other seams of coal, and machinery thereof, and the grieve's and colliers' houses belonging thereto, with the benefit of the tack of the lands of Wester Beath for the years thereof yet to run.”
The grieve's house thus sold was a decent building, consisting of two stories, and covered with slate. Before the scheme of division of the price was finally adjusted, the proprietor of the lands, under lease, claimed the property of it; and the purchasers, on this account, insisted for a proportional deduction from the purchase-money. In support of this demand, they had recourse to the arguments used in the cases in the Dict. under this title. They farther urged, That, although in sales carried on by creditors, who had attached the subjects merely as they stood in the person of their debtor, and were not possessed of his title-deeds, a purchaser might, from the nature of the thing, be supposed to undertake the risk of a partial eviction; yet the case was different where the sale proceeded at the suit of an apparent heir, having access to his predecessor's rights and evidents, and who could no more be justified in exposing a subject not belonging to the ancestor, than an ordinary vender.
The Lords did not distinguish an action of sale pursued by an apparent heir from one at the suit of creditors. They seemed to think the purchasers in this case might renounce the bargain altogether; and likewise, that if a separate value had been affixed to each subject, they might htve been allowed to renounce it, as to the subject evicted. But the purchasers declining to renounce, unless a considerable sum laid out by them in the improvement of the subject was to be repaid,
The Court refused to grant any abatement.
Lord Ordinary, Alva.For Mess. Lloyds, Rae.For the Apparent Heir and Creditors, Elphinston.Clerk, Home.
Fol. Dic. v. 4. p. 211. Fac. Col. No 31. p. 52.
