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.
William Hannay v. The Creditors of Bargaly
Date: 26 January 1785 Case No. No 30.
No deduction from the price allowed, on account of an error in a plan referred to in advertising the sale.
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In the advertisements, publishing the judicial sale of the lands of Bargaly, this estate was said to consist of 1710 acres, 146 of which were covered with wood; and a reference was made to a plan and measurement in the hands of the agent employed in the sale, which was agreeable to that description.
Mr Hannay, the purchaser, offered to prove, that there was a deficiency of 96 acres, of which 46 were woodlands, the estate extending in all only to 1614 acres. He therefore claimed a proportional deduction from the price, and
Pleaded, Alrhough the action quanti minoris is not sustained in Scotland, where a purchaser has been disappointed in the value of the subject sold, a different rule justly prevails, where, from its being either erroneously or fraudulenty described, he has been deceived with regard to its extent or quantity, Erskine, Book 2. Tit. 8. § 10.; 23d June 1757, Maclean against Macneil, voce Sale; Wilson against the Creditors of Auchinbreck, No 27. p. 13330: And this, though the bargain should still remain a beneficial one, the buyer being equally entitled to all the advantage he had reason to expect, as to be relieved from every loss to which he has been exposed, by receiving, in this manner, a false or inadequate notion of his purchase.
Answered, The value put on this estate, and the articles of roup, which alone formed the contract between the creditors and the purchaser, were here fixed, without regard to any measurement, this having been referred to merely as descriptive of the subject. An intention, therefore, cannot be presumed, of making the dimensions contained in it an essential condition of the bargain. Even in a voluntary sale, the circumstance above stated could not have justified an abatement of the price.
But in the case of lands sold judicially such a claim is inadmissible. It has been there wisely established, on account of the ignorance of creditors as to the nature and extent of their debtor's estate, that no deduction shall be given, unless where a separate value has been affixed to the right which is evicted, or found to be defective. In every other case, the purchaser's only remedy is by renouncing the bargain altogether, February 13. 1782, Lloyds against the Apparent heir of Paterson, supra.
Mr Hannay's petition, insisting for this deduction, was, with answers for the creditors, remited to the Lord Ordinary in the action of sale, who found no abatement due. Mr Hannay reclaimed; but his petition was refused without answers.
Lord Ordinary, Hailes.For the Petitioner, H. Erskine.For the Creditors, Rolland.Clerk, Orme.
Fol. Dic. v. 4. p. 210. Fac. Col. No 195. p. 306.
