Scottish Court of Session Decisions

Subject_1 LOCUS PŒNITENTIÆ.

Agnes Moodie
v.
Ann Moodie

1745, July 5.
Case No. No. 7.

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Three heirs-portioners intending to sell their lands, for the more easy distribution of the price, agreed that it should be set up to roup among the three so as one of them might still retain the lands; and the second and third made a private bargain that the second should not offer at the roup, but allow the lands to fall into the hands of the youngest, and a definite sum was pactioned to be paid by the youngest if she was purchaser to the second, whether the lands should sell higher or lower. Thereafter articles of roup were made out and signed by all the three without reference to this private bargain. And the youngest became purchaser at the roup. But then the second repented of the bargain and insisted for her full share of the price offered, and contended that as it was a bargain about a sale of lands there was locus pœnitentiæ, since no writ intervened upon the bargain, which was offered to be proved only by her oath, and secondly that that verbal bargain Was altered by the subsequent articles of roup,—though without them it could not have been executed; but the Lords unanimously found no locus pœnitentiæ.