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Scottish Court of Session Decisions >>
Whitehill v Kintore. [1669] Mor 7210 (21 June 1669)
URL: http://www.bailii.org/scot/cases/ScotCS/1669/Mor1707210-046.html Cite as:
[1669] Mor 7210
The Court ex proprio motu fixed a precise day for purging an irritancy.
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Arbruchell reported Sir John Ramsay of Whitehill, against Mr William Kintore of Mount-Lothian, Advocate. Mr William dispones these his lands to Sir John, who gives him a back-bond or reversion, bearing that he had paid him 15,500 merks, and, if he did not redeem at Whitsunday 1698, the lands should irredeemably belong to Sir John on his paying in 2500 merks farther; which 18,000 merks is declared to be the adequate price of the lands. There being an offer made by Mr William, he raises a declarator of redemption. Sir John contends, the order was simulate, and objects sundry nullities against it; and therefore craves the lands may be declared his, on his paying up the remanent price, Answered, This was no absolute sale, but on the matter only a wadset, and the back-bond being of the same date is of the nature of a reversion, et pars contractus, and like a pactum incontinenti adjectum, and as good as if it had been in gremio of the right, and therefore it is still purgeable on payment at the bar, whether the consignation was formal or not, this being pactum legis commissoriæ, which is odious in pledges, and reprobated by all laws. Replied, This was no wadset, but a conditional sale, as was found betwixt Earl of Tullibarden and Campbell, No 45. p. 7208., who was not allowed to purge; and though Mount-Lothian be offered now 4000 merks more by Prestongrange for the lands, yet that does not import but the price sipulated and agreed upon between Sir John and him was adequate; for a neighbour ex æmulatione vicini may out-bid the value. The Lords found it yet purgeable, but that Sir John might have no trouble, declared, if he were not paid betwixt and the 10th of March, the lands should be his, and that there must be no retention on the pretence of causing him compt and reckon for his intromissions with the rents of the lands, Sir John finding caution to repay what afterwards they should instruct against him, else they might keep up his money, and delay him with a tedious compt and reckoning.
Fol. Dic. v. 1. p. 487. Fountainhall, v. 2. p. 46.
