Scottish Court of Session Decisions

This was an action at the instance of William Tully, Colfin, Portpatrick, against James Rodger, flesher, Stranraer, and John Mackie Adair, solicitor, Stranraer, concluding that the defenders should be ordained either (first) to exhibit to the pursuer a search of incumbrances over the heritable subjects in Portpatrick, disponed to the pursuer in the disposition granted by the said James Rodger in his favour dated 19th May 1873, showing that the same are purged from all bonds and dispositions in security, or other incumbrances affecting the same; or (second) to pay or discharge all incumbrances afEecting the said subjects, and in particular to pay or discharge the bond and disposition in security for £250 sterling granted by the said James Rodger to the said John Mackie Adair dated the 13th September and registered in the Division of the General Register of Sasines applicable to the county of Wigtown the 4th October 1869, and to exhibit a discharge of the said bond, and discharges of any other incumbrances affecting the said subjects, to the pursuer: Or otherwise, and in the event of the defenders failing to exhibit the said search or the said discharge to the pursuer, they ought and should be decerned and ordained, jointly and severally, or severally, by decree foresaid, to make payment to the pursuer of the sum of £300 sterling, or such other sum as may be necessary to free the subjects in question from all incumbrances prior in date to 19th May 1873, and to enable the pursuer to pay off the said incumbrance or incumbrances: Or otherwise, and in any event, the said defenders ought and should be decerned and ordained by decree fore-said, jointly and severally, or severally, to make payment to the pursuer of the sum of £300 sterling, being the amount of loss, injury, and damage sustained by the pursuer through the defenders' wrongous concealment of the existence of the said bond and failure to free the subjects in question from all incumbrances prior to 19th May 1873.”

The pursuer averred—“(Cond. 1) By disposition dated 19th May 1873 the defender James Rodger, in consideration of the prestations therein contained, disponed to the pursuer certain heritable subjects situated in Portpatrick, as particularly described in the said disposition, for the sum of £200, which was the full price or value thereof. (Cond. 2) The said disposition was prepared by the defender John Mackie Adair, who is a solicitor in Stranraer, and who was at the time the usual law-agent of the defender James Rodger. Up to the date of signature—19th May 1873—the pursuer was not represented by a separate agent in the

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transaction, but Mr Adair acted for both parties. On 20th May 1873, however, the late Alexander Ingram, solicitor, Stranraer, began to act as the agent of the pursuer in the matter. Finally the transaction was carried through, the price was paid, and the title-deeds were delivered to the pursuer, who entered into full possession of the subjects. (Cond. 3) Ex facie of the said disposition the subjects conveyed are unburdened. There is the usual warrandice clause, and no reference is made to any incumbrance on the subjects, or to any bond and disposition in security applying to them. At the time of the granting of the said disposition no mention was made to the pursuer, or to anyone on his behalf, by either of the defenders or by any other person of the existence of any such incumbrance or bond. The pursuer was in ignorance of the existence of any debt or security over the property, and he purchased the property, and paid the full price therefor, on the understanding that it was not incumbered by any debt. The defenders so represented it. (Cond. 4) On 1st April 1889 the pursuer was served with a schedule of intimation, requisition, and protest for payment of £6200, together with £3, 7s. 6d. of interest due thereon, under a bond and disposition in security over, inter alia, the said subjects, and with the usual notice of sale of the subjects in default of payment. This intimation and requisition was at the instance of Hugh Todd, solicitor in Stranraer, who has now acquired right to the said bond. Up to the said 1st April the pursuer had not been informed of the existence of the bond, and was not aware of it. The said Hugh Todd is now proceeding to carry out a sale by advertising the property for sale in terms of the statute. (Cond. 5) The said bond and disposition in security, as the pursuer has now learned, was granted by the defender the said James Rodger to the defender the said John Mackie Adair, and is dated 30th September and registered 4th October 1869. It was held by the defender Adair until March 1886, when he first assigned it. At the time of the disposition by the said James Rodger to the pursuer, Mr Adair, although aware of the existence of the said bond, and himself the holder of it, failed to inform the pursuer, or anyone on his behalf, of the same; and although he prepared the said disposition Adair failed to insert therein any declaration of this incumbrance. The defender Rodger, although aware of the existence of the said bond, nevertheless sold the subjects to the pursuer as unburdened by any such debt, and granted the said disposition in such terms. The defenders thus wrongfully concealed from the pursuer the fact of the existence of the said bond, and in their respective capacities misrepresented the true state of the subjects.”

The pursuer pleaded, inter alia—“(2) The defender Adair having been guilty of gross negligence, and having failed to exercise proper professional care as a law-agent in carrying through the said sale transaction, is liable in damages to the pursuer.”

The defender Adair pleaded—“(1) The pursuer's statements are irrelevant and insufficient to support the conclusions, so far as the defender Adair is concerned.”