Subject_1 LOCUS POENITENTIAE. Subject_2 SECT. III.
What writing sufficient to bar Locus Pćnitentić. - Ubi res not est integra. - Rei interventus. - Oath. - An informal writing does not bar Locus Pćnitentić. - Promise to ratify an informal writing bars Locus Pćnitentić.
James Barron v. Sarah Rose
Date: 23 January 1794 Case No. No 52.
A bargain concerning heritage, entered into by missives, found not to be binding, where one of the missives was improbative.
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James Barron conveyed his right in certain houses to Sarah Rose, by the following holograph missive:
‘Madam, Fort-George, 24th November 1792.
‘I promise to give you possession of all the houses belonging to me in Campbeltown, at Whitsunday 1793, according to our agreement of this date.’
Mrs Rose, on the other hand, granted another missive, of the same date, to Barron, obliging herself to pay the price at the term of her entry; it was, however, neither holograph nor attested by witnesses.
James Barron afterwards brought an action, concluding against her to fulfil the bargain.
In defence, she urged, that as her own missive was not holograph, she was entitled to depart from it; 26th February 1761, Fulton against Johnstone, No 46. p. 8446.
The Lord Ordinary found, ‘That the counter missive by the defender not being holograph, or otherwise probative, the bargain, which related to an heritable subject, was incomplete, and the defender at liberty to resile, and therefore assoilzied her.’
In a reclaiming petition the pursuer
Pleaded; It is no doubt a settled point, that in bargains respecting heritage, there is locus pænitentiæ till they are completed by a formal writing. But, as the defender's missive related merely to the price, and had no reference to the conveyance of heritage, it was not necessary that it should be holograph; on the contrary, a verbal obligation proved by her oath, would of itself have been sufficient. The delivery and acceptance of the regular missive, obliging the pursuer to convey the subject, completed the transaction, and barred locus pænitentiæ Stair, b. 1. tit. 10. § 9.; Rem. Dec. 23d November 1748, Lord Kilkerran against Paterson, No 43. p. 8440.; 10th August 1759, Muirhead against Chalmers, No 45. p. 8444.
Observed on the Bench; A bargain concerning heritage may indeed be completed by an unilateral obligation. But the present is not a case of that kind. It is a mutual contract, entered into by missives, which must be binding on both or neither of the contracting parties. This is the rule in all bargains concerning heritage, as has been solemnly decided; 29th November 1764, Park against M'Kenzie, No 47. p. 8449.; 22d May 1790, Macfarlane against Grieve, No 51. p. 8459. &c. Lord Kames thought otherwise, which led him, in reporting some of those cases, to give them a different turn. That of Lord Kilkerran against Paterson, 23d November 1748, No 43. p. 8440. proceeded entirely upon specialities, though it has erroneously, been supposed to be a decision upon the general point of law.
The Court refused the petition without answers.
Lord Ordinary, Polkemmet.For the Petitioner, M. Ross.Clerk, Gordon.
Fol. Dic. v. 3. p. 395. Fac. Col. No 98. p. 218.
