Scottish Court of Session Decisions

The Lord Ordinary ( Kyllachy) repelled the first and third pleas for the defender.

“ Opinion.—In this case I have come to be satisfied that the plea of no jurisdiction must be repelled.

The question is whether a defender, feudally vested in heritable property in Scotland, ceases to be subject to the jurisdiction upon the execution of missives of sale not probative and not followed by rei interventus, but followed by the execution but not delivery of a disposition in favour of the purchaser?

I am not able to answer this question in the affirmative. I consider that to do so would be to affirm that if this action had been directed against the purchaser, he would have been subject to the jurisdiction of the Scotch Courts simply in respect of his purchase. Now, although the decisions have gone a considerable way in sustaining the jurisdiction, wherever there is substantial ownership of heritable estate in Scotland, no case was cited to me where such substantial ownership has been held constituted by mere purchase, not followed by actual conveyance. Certainly no case has occurred in which the Court has recognised improbative missives, not followed by rei interventus, or a delivered disposition, as operating a transfer of property for the purpose of jurisdiction.

I recognise in the case of a completed sale the force of Mr Constable's able argument, founded on the impossibility of inhibition after such completed contract of sale, and, on the other hand, on the possibility after such sale of an adjudication in implement. I quite recognise the force of that argument, and I by no means express an opinion adverse to it. All I say is that there is no decision which has as yet gone so far. But here I do not consider that the question suggested properly arises at all. This is not a case of a concluded and binding contract of sale. The missives are admittedly improbative. There was therefore locus pœnitentiœ until the disposition was executed and delivered, and there being locus pœni—tentiœ, the result of course was that neither party was bound by the documents which had passed.

It is said that the disposition having been executed by the defender and posted before the raising of the action, addressed to the joint agent of himself and the purchaser, that constituted delivery of the disposition, and amounted to divestiture. But I am unable to hold that, at all events until the deed reached the hands of the agent, it was beyond the power of the defender. He might, for example, I cannot doubt, have countermanded by telegram the completion of the transaction. That being so, the case is just where I put it as a case of an unconcluded contract of sale not binding upon the parties, and therefore not sufficient to operate in any sense a transfer of property.

I shall therefore repel the plea of no jurisdiction, and with respect to the plea of forum non conveniens, I can discover no ground of convenience which might not be urged in the great majority of cases in which actions are brought in this Court on transactions with foreigners, or in which foreigners are interested.

I shall therefore repel both pleas.”

The defender reclaimed, and argued—Assuming that the missives passing between Parker and the defender's agents had been probative, jurisdiction would not have been established against the defender. (1) By the contract to convey the right of the seller was transformed into a mere right to a price, and the substantial right to the property passed to the purchaser, and the property could not have been attached by inhibition against the seller ( Livingstone v. Macfarlane, 1842, 5 D. 1). The cases showed that the Court would not arrogate to itself jurisdiction on this ground, unless there was property attachable by inhibition against which its decree could be made effectual— Ferrie v. Woodward, 1831, 9 S. 854; M'Arthur v. M'Arthur, 1842, 4 D. 354; Fraser v. Hibbert, January 14, 1870, 8 Macph. 400; Bowman v. Wright, January 24, 1877, 4 R. 32. (2) Where there was a binding contract of sale, it was clear there would be jurisdiction against the purchaser; bare apparency had been held sufficient to found such jurisdiction ( M'Arthur v. M'Arthur, cit. supra), and jurisdiction could not be founded against both seller and purchaser of the same property. The missives in the present case were not improbative. The second offer was the only letter which was not holograph, and the acceptance expressly applied to both offers. But assuming that there was informality, it did not affect the essence of the contract—(Lord President's opinion in Walker v. Flint, Feb. 20, 1863, 1 Macph. 417, and Lord Deas' opinion in Emslie v. Duff, June 2, 1865, 3 Macph. 854). The right to take advantage of such informality was, like a right of election, personal to the party to the contract, and it was not a right which a single creditor could exercise. The defender's case did not rest solely on the passing of the missives; by the despatch of a completed disposition the defender had done all in his power to divest himself of the property, and independently of constructive delivery he should

Page: 760↓