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Sir Robert Lawrie of Maxwelton v Marion Craick, and Homer Maxwell he Husband. [1697] Mor 8425 (23 December 1697)
URL: http://www.bailii.org/scot/cases/ScotCS/1697/Mor2008425-033.html Cite as:
[1697] Mor 8425
Subject_1 LOCUS POENITENTIAE. Subject_2 SECT. III.
What writing sufficient to bar Locus Pćnitentić. - Ubi res not est integra. - Rei interventus. - Oath. - An informal writing does not bar Locus Pćnitentić. - Promise to ratify an informal writing bars Locus Pćnitentić.
Sir Robert Lawrie of Maxwelton v. Marion Craick, and Homer Maxwell he Husband
Date: 23 December 1697 Case No. No 33.
A sale of lands found to stand, although writ had not intervened, a part of the price having been paid.
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Mersington reported Sir Robert Lawrie of Maxwelton against Marion Craick, and Homer Maxwell her husband. Sir Robert having acquired the lands of Stuarton, pertaining to the said Marion Craick's father, and she having an adjudication thereupon, he enters into communing with Homer Maxwell her husband, and they agree for 6000 merks, whereof Homer receives 1000 merks in hand, and the other 5000 merks is sealed up and consigned in a neutral person's hands till the disposition were signed by the said Homer and his wife, but they declined to subscribe, unless a reservation were insert to secure her against her father's debts. Maxwelton pursues them for implement. Alleged, This being a right of lands, it was no perfect consummate bargain till writ had followed thereon and been delivered, till which there was always locus pænitentiæ. Answered, There could be no resiling here, because there was rei interventus by the delivery of the 1000 merks, and the consigning the rest, and which they offered to prove by the notar's instrument, and the depositions of the witnesses insert. Replied, Whatever may be pretended that res is not integra by Homer's accepting the 1000 merks in the first end, and in contemplation of this bargain, yet the consigning the rest of the money is no such consummation but it might be resiled from, and no instruments nor witnesses can prove such an agreement, else heritable rights might be disponed by witnesses; but the terms must be only proved by my writ or oath.—The Lords found the rei interventus took off the power of resiling, and that res was no more integra if he took the 1000 merks in part of the price; but found this could not be proven by it esses, but only scripto vel juramento of Homer Maxwell, whether he took it in contemplation of this bargain or quo alio nomine he got it, or if he reserved to himself freedom to resile on reponing Maxwelton cum omni causa, and refunding his damage. The question was, on whom the loss of the annualrent of the consigned money should fall? For the consigners in the clerk of the bills hands, by order of a judge, are free of interest, yet such voluntary consignation as this non sistit cursum usurarum. See Proof.
Fol. Dic. v. 1. p. 563. Fountainhall, v. 1. p. 804.
