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United Kingdom House of Lords Decisions
You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Charles Menzies Esq; of Kinmundie, Writer to his Majesty's Signet, Uncle of the v. Helen, Barbara, and Jean Menzies, Sisters to the deceased Thomas Menzies of Kinmundie, and Robert Muir Merchant in Aberdeen, Husband to the said Barbara, and as their Assignee for his Interest [1715] UKHL Robertson_139 (25 July 1715)
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Cite as: [1715] UKHL Robertson_139
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SCOTTISH_HoL_JURY_COURT
Page: 139↓
(1715) Robertson 139
REPORTS OF CASES ON APPEAL FROM SCOTLAND.
Case 34.
v.
Subject_Sale. —
Fountainhall, 21 June, 1712.
A person who had purchased lands at a public sale, at 20 years purchase of a proved rental, afterwards claims deductions; 1st, Because the teinds were held by a tack from the College of Aberdeen then near expired; 2d, Because, as he alleged, the rental was too highly stated by one Chalder; 3d, Because he was kept out of his purchase for six years, during which time the person in possession only accounted for the rents, which were less than the interest the price; 4th, A deduction of certain expences he had been put to, in adjusting the debts due by the estate and in the person of the last possessor thereof. The Court having refused these deductions, and allowed the fetters 30 l. of expences, the judgment is affirmed.
In this case the purchaser had been employed as agent to conduct the sale, proof of rental, &c.
Thomas Menzies, late of Kinmundie, left one son, and the respondents his daughters, all under age, to whom he had appointed John Hamilton, his brother-in law, tutor and cursor.
Page: 140↓
The appellant, the brother of the deceased and uncle of the respondents, was employed by the tutor in his profession to take the proper methods for proving the said debts and rental. A commission was taken out accordingly, and the tenants and several other persons were examined upon oath as to the rental of the lands; upon report of which, and upon comparing a lift of the debts with the then constituted rental, amounting to 1124 l. 7 s. 6 d. Scots, after all deductions, the Court, in July 1701, granted liberty to the tutor to bring the said estate to a sale, either in whole or in part, for the best price that could be got.
The lands were accordingly advertised for public sale, and at the day appointed, the appellant offered 20 years purchase of the free rental, or 2000 merks for each chalder, or 100 merks of yearly rent. Alex. Gordon of Pitlurg, however, who was outbid by him at the sale, entered into a posterior agreement to give more than the price offered by the appellant: and, accordingly, on the 19th of January 1702, the tutor executed a disposition of the estate in favour of Mr. Gordon as the highest offerer. Soon after the brother of the respondents died.
The appellant brought an action before the Court of Session against the said John Hamilton the tutor, Mr. Gordon of Pitlurg, and also against the respondents the daughters, as representing their brother, to have it found that he was the true purchaser of the said lands of Kinmundie. After various proceedings in this action, the Court in 1703 found “that the practices and contrivances of the tutor and Alexander Gordon were illegal, and that the said Alexander Gordon having offered at the sale, and being then overbid was in mala fide to enter into any after-articles with the said tutor, in avoidance of the aforesaid sale; and found that the appellant had the sole right and title to the said lands of Kinmundie, by virtue of the articles of sale; and ordained the defenders to divest themselves of any right, title, or interest, they had to the said lands, in favour of the appellant, and ordained him to enter into a bond with security for the purchase-money of the said lands, according to the terms of the articles of sale, and that within 40 days after date of the decree of preference.”
According to this decree, the bond was drawn and settled at fight, and by the direction of the court; and thereby the purchase money, rated according to the then constituted rental, was payable by the appellant to the creditors upon the estate, in particular to the said Alexander Gordon, who had paid part of the price, and had purchased in the rights of several creditors, and afterwards the overplus, if any should be, was to be paid to the respondents, The appellant, after this, had an action with
Page: 141↓
The price at which the appellant purchased was 22,486 l. 13 s. 4 d. Scots; the mother of the respondents had an annuity paid to her yearly of the sum of 333 l. 6 s. 8 d. being the interest of 6,700 l. Scots; and the debts amounted at the time of the sale to 13,023 l. 19 s. 8 d. Scots. So that the balance immediately to be paid to the respondents was only 2762 l. 13 s. 8 d. Scots. Differences arising between the appellants and the respondents, aster the marriage of Barbara, the respondents commenced an action of count and reckoning against the appellant before the Court of Session, to compel payment to them of the balance of the said price. In this action the appellant gave in a stated account of charge and discharge, wherein he charged himself with the full price of the said lands, according to the bond entered into by him, and discharged himself by nine articles, five of which being for debts paid by him according to the tenor of the bond, were not controverted: the other four form the subject of the present appeal.
The 1st of these was a deduction from the price upon account of the teinds of the lands being made part of the rental, with the deduction of a nearly tack duty payable to the College of Aberdeen, from which they were held by two tacks nearly expired. After answers for the respondents, the Court at first decided in favour of the appellants claim, but on the 22d of July 1712, “found that the appellant should have no deduction of the price, on account of any defect in the rights to the teinds.”
The appellant, 2dly, claimed a deduction from the purchase money, to compensate an alleged deficiency in the rental, as being too highly stated by one Chalder. Upon this point a proof was taken for both parties, and the court, upon the 27th day of June 1713, “found that the appellant could have no deduction upon the account of any shortcoming in the rental.”
The third deduction claimed by the appellant was, that Mr. Gordon being possessed of these lands for six years, when the appellant entered to possession, Mr. Gordon accounted to the appellant only for the rents of the lands; but that being less than the interest of the price paid by the appellant, and for which he was accountable, and the difference being about 840 l. he claimed deduction thereof accordingly. Upon this point the Court, on the 19th of December 1712, “found that the appellant could have no deduction upon account of the difference, between the rent of the lands and the interest of the price.”
The fourth deduction claimed by the appellant was the sum of 1000 l. Scots, as the costs he had been at in adjusting the debts claimed by Mr. Gordon, the benefit of which accrued to the respondents. The Court, on the 16th of December 1712, “found that the appellant could have no deduction upon account of
Page: 142↓
The respondents afterwards petitioned the court to allow them their expences, and an account thereof was given in. On the 29th of July 1713, the Court found “that the appellant was liable to the expences, and modified the same to 30 l. sterling.”
Entered, 29 April 1715.
The appeal was brought from “Several interlocutors of the Lords of Council and Session, made on the behalf of the respondents.”
Heads of the Argument.
The appellant again set out his claims on the four points before stated.
The respondents answered on the 1st. Point. That the appellant was the only person employed in the bussiness of proving the rental and value of the estate; and when it was sold, he knew all its circumstances, the real value of the lands and what title there was to the teinds. When the estate was sold, all that was agreed upon was, that the rental then was so much free rent after deduction of feu-duties, minister's stipends, and teind tack duties; and at that price it was bought per aversionem without any distinction between teinds or any other part of the estate. Since the appellant knew what the respondents had, the obligation on their part must only be understood to extend to make what they had good; and nothing is conveyed to the appellant but the lands and these tacks of the teinds; and therefore the appellant can claim no more than what was conveyed to him.
On the 2 d Point. The rental had been proved by the depositions of the tenants and others before the sale, and the Court, upon advising these depositions, and the account of the true rental given in by the appellant himself, as agent for conducting the proof thereof, found the rental proved to be 1124 l. 7 s. 6 d. Scots. At the rental so proved was the estate sold to Mr. Gordon; at that rental Mr. Gordon accounted to the appellant for the six years he was in possession, and the appellant had a conveyance from Mr. Gordon as he possessed it. The appellant, in his account against the respondents for this business, not only charges all his particular expences, hut adds this article, “For the appellant's own pains in ordering this process of sale, making up inventories of debts, rentals, &c. and carrying on the whole business thereof from beginning to end, 1004 Scots.” So that undoubtedly he knew what was the real value of these lands, and having bought the lands at that value, he ought to be concluded.
When a new probation was afterwards granted it was limited to the value of one or two particular farms. The appellant accordingly examined several witnesses; but when the proof came to be advised, there did not appear the least foundation for the deductions claimed. What was proved by him was only a small encouragement
Page: 143↓
On the 3 d Point. The appellant suffered no loss by Mr. Gordon's possession; for had the appellant been in possession himself, he could only have had the whole rent, and would have been accountable for interest. Besides, it was the appellant's own fault, that Mr. Gordon continued so long in possession, since he had judgment against Gordon to convey to him in 1703, which was two years after the sale. Mr. Gordon required the appellant soon after, by way of instrument, to take possession of the estate, but this the appellant declined; and at last Mr. Gordon was obliged to bring an action against the appellant to compel him to take the estate.
On the 4 th Point. What the appellant did in the action with Mr. Gordon was for his own safety, because he could only pay such debts as were mentioned in the decree of sale; and whatever expence was incurred in this matter was not occasioned by the respondents, who were no parties to the action. And after all what the appellant pretends to have profited the respondents in is not near half of what he claims as expences.
The respondents having been thus put to very great expence, they petitioned the court to have their expences allowed them, and gave in a bill, amounting to about 300 l. sterling, which they were ready to make oath they had really expended. The appellant made great opposition to this, and the Court allowed the respondents 30 l. of expences, which sum was all they got for the expences of the whole action.
Judgment, 25 July 1715.
After hearing counsel, It is ordered and adjudged, that the petition and appeal be dismissed, and that the several interlocutors therein complained of be affirmed.
Counsel: For Appellant,
N. Lechmere.
John Cumyn.
For Respondents,
Rob. Raymond.
Will. Hamilton.