Scottish Court of Session Decisions

Subject_1 MUTUAL CONTRACT.
Subject_2 SECT. I.

Retention until the other party perform.

Dalziel of Binns
v.
Creditors of Falconer

Date: 16 July 1731
Case No. No 6.

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A purchaser of a land estate having taken the disposition in name of a trustee, who granted back-bond, declaring the trust, and obliging himself to denude; and the trustee having thereafter advanced several sums to the purchaser, brought at last a declarator against the purchaser's creditors, concluding, that he was not bound to denude until he should be satisfied of his debts. The creditors answered, Whatever might be said, were they insisting upon the back-bond to oblige him to denude, the pursuer in the present situation of affairs, had no hold of the estate, to force payment: The creditors had the possession derived to them from their debtor; and, for a title, they wanted none from the pursuer: A simple declarator of trust, which the trustee could not oppose, was as good to them as a conveyance from the trustee. The Lords assoilzied from the declarator.——See Appendix.

Fol. Dic. v. 1. p. 594.