William Ferguson of Raith, Esq. v. Hugh Mossman, Esq., and J. Anderson, W.S. [1797] UKHL 3_Paton_531

UKHL
William Ferguson of Raith, Esq. v. Hugh Mossman, Esq., and J. Anderson, W.S.
[1797] UKHL 3_Paton_531
The teinds were represented in the memorial and abstract of a ranking and sale, and in the advertisements of the sale of the estate, to be valued and to be exhausted, and subject to no further burden from stipend. Held, on discovery of an informality fatal to the sub-valuation, and which deprived the lands of exemption from such burdens, namely, that the sub-valuation and report of the sub-commissioners had not been approved of by the high commission of teinds;—that the purchaser was not entitled to abatement from the price, there being no mala fides on the part of the seller.Jan. 23. 1796.Feb. 3 and 17, 1796.

June 1, —

The appellant was purchaser of the lands of the Macfarlane estate, at a judicial sale, including the lands of Upper and Nether Arrochar, in the parish of Arrochar. The upset price was £19,756. They were knocked down to him at £28,000, and were bought under the representation that the teinds were valued, and the value of them exhausted by the stipend of the minister; and this was set forth in the advertisements of the sale, and was proved by the sub-valuation of

Page: 532 ↓

“That it must be presumed that Mr. Ferguson, prior to his purchase of the estate of Arrochar, made inquiry, not only into the circumstances and situation of that estate, but also into the rights and titles thereof; and as he had obtained all right, title, and interest, which Messrs. Macfarlanes and their creditors had in the estate, (which was all they were bound to do by the conditions of sale), therefore finds Mr. Ferguson is not entitled to any deduction from the retained price on account of the teinds in question, and dismisses his claim accordingly.”
And on two representations, the Lord Ordinary adhered, and on reclaiming petition, the Court adhered. *Against these interlocutors the present appeal was brought.Pleaded for the Appellant .—In determining the question here raised, no difference can be made in point of principle between a judicial sale by creditors on a bankrupt estate, and a sale voluntarily made by the proprietor himself. The rules which apply in the latter case must, with equal force, bind and take effect in the former; and, assuming no distinction to exist between judicial and voluntary sales, at least in the completion of the sale, it is a fixed rule, recognized in the law of Scotland, that the purchaser is entitled to relief against the seller where he has been induced to the

Footnote

* Lord President Campbell said:—

“I think the interlocutors right. The whole facts were fairly stated, and offerers might judge for themselves. What if the teinds had been stated as not valued, and afterwards a valuation was discovered?”

Page: 533 ↓

Pleaded for the Respondents .—The appellant does not allege that the teinds of the lands of Upper Arrochar were comprehended in the sale. All he says is, that it was held out to purchasers that the lands could not be subjected to a further payment as for teinds, because the minister's stipend exhausted the valued teind, which he says implied a warranty of exemption. But it by no means follows that he was bound to rely on the memorial and abtracts and advertisements. The former are merely framed for the information of the judges, and the latter always refers to the evidence lying in Court, for any fact which may be therein stated. With the evidence of these facts, a purchaser at a judicial sale must be presumed satisfied. And these representations were mere matter of opinion, formed and given from documents pointed out. No disguise or fraud was practised, and as it was admitted that the appellant's man

Page: 534 ↓

After hearing counsel, it was

Ordered and adjudged that the interlocutors be affirmed.Counsel: For Appellant, Sir J. Scott, Wm. Adam. For Respondents, W. Grant, J. Anstruther.Note .—Unreported in Court of Session.