United Kingdom House of Lords Decisions

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Cite as: [1773] UKHL 2_Paton_326

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SCOTTISH_HoL_JURY_COURT

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(1773) 2 Paton 326

CASES DECIDED IN THE HOUSE OF LORDS, ON APPEAL FROM THE COURTS OF SCOTLAND.

(M. 14,179.)

No. 81.

John Hepburn of Edinburgh, Surgeon, and William Cheap, Appellants

v.

George Aikman of Glasgow, Merchant, Respondent

House of Lords, 30th April 1773.

Subject_Sale — Exceptionable Title.—

Circumstances in which held, that a purchaser, according to the terms of the sale, was bound to take the title as it stood, or give up the bargain.

The premises rented and occupied by Cheap as a wareroom, in the High Street, Edinburgh, were advertised for sale, referring for particulars, &c. to George Jeffrey, writer in Edinburgh. In answer to this advertisement, the appellant Hepburn wrote Jeffrey, offering £150 entry at Whitsunday then next, and obliging himself to stand by this offer, under a penalty of £30. On the same day, this offer was accepted of, in the following terms:

“I have yours of this date, offering me the sum of £150 sterling, for the wareroom presently possessed by William Cheap, Linendraper, which I am empowered by George Aikman, merchant in Glasgow, the proprietor, to dispose of; and I hereby, on the part of Mr. Aikman, accept of your offer, and shall execute
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the deeds neccssary with your first conveniency; your entry to be on Whitsunday 1771, and you to grant bond, with security to my satisfaction, payable at that term; the disposition to bear absolute warrandice; and I oblige Mr. Aikman to stand to this bargain, under the penalty of £30 sterling, attour performance.”

After this bargain was thus completed, Hepburn having been solicited by Cheap the tenant, to let him the wareroom, he declined, but offered to sell him the premises, which was accordingly done at £155. Upon this Cheap came in the room and place of Hepburn, and when the term of entry arrived, he made to Jeffrey a tender of the price, on his giving such a title as he himself might be expected to give, in case of his selling, or borrowing money thereon, failing which, the seller to dispone other estate of equal value, as a collateral security or warrandice against eviction. The respondent refused to accept the money under these conditions, and offered only personal warrandice. Cheap made a second tender, requiring a good and proper title, with absolute warrandice, but this was also refused. Having thus done every thing to fulfil their part of the contract, matters lay over in this state until the seller, respondent, brought the present action for the price, against Hepburn, and also concluding that he should be bound to accept a disposition to the same, containing absolute warrandice, or, in case it should be found that he is not bound to accept of the title as it stands in the seller's person, that the bargain should be declared void and null, and the defender, Hepburn, liable in the penalty stipulated. The appellant, Cheap, afterwards appeared as a party for his interest.

Jan. 28, 1772.

July 22, 1772.

Dec. 10, 1772.

Of this date, the Lord Ordinary found, “That Hepburn, was not liable for the price, until a sufficient progress was produced. And, on representation, he again found, “That the respondents, (appellants Hepburn and Cheap,) are not bound, and cannot be compelled to give up the bargain which the respondent (appellant) John Hepburn made with the representer, and that they are not liable to pay the price of the subjects sold, till a sufficient progress is produced. On reclaiming petition to the Court, the Lords found, “That the defenders (appellants) are bound either to accept of the disposition and progress offered, or to depart from the bargain, and repone the petitioner (the respondent) to the possession, and in respect it appears that William Cheap knew the defect in

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the progress, at the time when he made the bargain with Hepburn; therefore, find him liable in the expense of process; the account thereof to be given in to Court, and remit to the Ordinary to proceed accordingly.”

Dec. 19, 1772.

Jan. 4, 1773.

On another reclaiming petition the Court adhered. And, in terms of the remit back to the Lord Ordinary, his Lordship, of this date, pronounced this interlocutor:—

“Appoints the defenders to declare their option whether they will accept of the disposition and progress offered, or depart from the bargain, in terms of the interlocutors of the whole Lords, and that betwixt and the 22d current, with certification.”

Against these three last interlocutors the present appeal was brought to the House of Lords.

Pleaded for the Appellants.—When the appellant Hepburn contracted with the seller, he was ignorant of any defect in the title, but relied on a good title being given. Whatever Cheap may have known about the title when he bargained is immaterial, as he came into the right and place of Hepburn, in Hepburn's contract with the seller; and Cheap was expressly told that it was incumbent on the seller, by that contract, to give an unexceptionable title, and on this Cheap, as well as Hepburn, relied and acted throughout. Besides, the seller is in a condition to give a good title, by obtaining the heir's consent, or proceeding by adjudication in implement. In any view, the expenses of this suit ought not to be thrown upon the appellants, who, on the contrary, ought, in the whole circumstances, to be held entitled to their costs.

Pleaded for the Respondent.—The terms of the bargain with Mr. Hepburn were, that the disposition should bear absolute warrandice, which was meant and understood to cover all defects in the title. When the flaw in the title was discovered, the parties agreed to refer the matter to a conveyancer for his opinion, whether any, or what security the seller should give Hepburn; and had he retained the purchase, the matter would have been settled long ago to the satisfaction of both. But the appellant Cheap purchased in the full knowledge of this defect in the title, and, therefore, cannot be heard to insist for a good title, or to insist on the purchase, and yet refuse payment of the price until that good title be produced. If the title be defective, his obvious course is either to give up the bargain, or pay the

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price. He cannot refuse both, and at same time retain possession of the subjects purchased. The respondent's alternative claim is therefore fair and reasonable, that he accept the progress as offered, or void the agreement and possession.

After hearing counsel, it was

Ordered and adjudged that the said appeal be dismissed, and the interlocutors complained of be affirmed, with £100 costs.”

Counsel: For Appellants, Al. Wedderburn, E. Perryn.
For Respondent, J. Montgomery.

1773