Robert Anderson, Mason v. James Anderson, late of Crookhill [1759] UKHL 2_Paton_22

UKHL
Robert Anderson, Mason v. James Anderson, late of Crookhill
[1759] UKHL 2_Paton_22 · 1755-12-04
Circumstances in which held, where a purchaser did not find satisfactory security for payment of the price within the time specified in the minute of sale, though cautioners were offered, but rejected as insufficient, the seller was entitled to sell the property to another.The lands of Crookhill, belonging to the respondent, were burdened with debt to such an extent as to compel a sale

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The appellant failed to produce cautioners satisfactory to the seller and his creditors; the consequence was, that letters of horning on the minute of sale and agreement were taken out, and he was charged to implement his agreement. This produced no result, and the respondent being pressed by his creditors, the estate was again exposed, and sold of new to Robert Pollock, who became bound to pay all the debts of the creditors. Pollock was infeft, entered into possession, and paid all the debts and encumbrances. Whereupon the appellant raised letters of horning on the first sale, to charge the respondent to perform his part of the agreement of the sale of the estate to him. The present suspension was then brought before the Court of Session.June 29, 1757.After various procedure, and proof led as to the circumstances of the appellant, and the cautioners offered by him, the Court ultimately pronounced this interlocutor:—
“Having again advised this petition, with the answers and proofs adduced in consequence of their interlocutor of the 4th December 1755, they find that the charger (appellant) not having implemented his part of the minute of sale, by payment of the sums thereby stipulated, or finding caution in terms thereof, the suspender was at liberty to enter into the second bargain with Bailie Robert Pollock, and therefore suspends the letters simpliciter , and decern with expenses.”

July 12, 1757

Aug. 10. —

On reclaiming petition the Lords unanimously adhered. Against these interlocutors the present appeal was brought.Pleaded for the Appellant :—Having obtained a decree reducing and setting aside the second purchase, he was in titulo to insist for performance of the first agreement with his brother, James Anderson; and this decree, though one by default, and obtained in absence of the defender's counsel, was good to sustain the title. The cautioners offered by him ought not to have been rejected, as they were of good and unexceptionable credit for the sums referred to, which

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Pleaded for the Respondent :—In judicial sales, and in all private voluntary sales of lands, the constant practice is to hold the purchaser bound to find security for payment of the price within a short limited time after the sale, in order to secure the seller and his creditors from any disappointment. And in all such cases, it has never been doubted that the purchaser forfeits his purchase, and the seller is again at liberty to sell the estate, unless satisfactory sureties are offered, within the time expressly prescribed. This is the more necessary and imperative where, as in this case, the avowed purpose of the sale was, to discharge encumbrances, and to relieve the respondent from the pressure of debts. And it was a fact, beyond all dispute, that both the cautioners offered by Robert Anderson were at the time utterly insufficient, one of them having soon thereafter fled the country for debt, and the other in bad circumstances.The appellant applied to the House of Lords, by petition, for further time to prepare his cause, but it was rejected.Thereafter counsel appearing for the said respondent; but none appearing for the appellant: and the respondent's counsel having prayed an affirmance of the several interlocutors complained of with costs: it was ordered and adjudged that the interlocutors therein complained of be affirmed, with £20 costs.Counsel: For the Respondent, Rob. Dundas, C. Yorke.Unreported in Court of Session.