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Scottish Court of Session Decisions >>
Cockpen v Creditors of Cockpen. [1732] Mor 13329 (22 December 1732)
URL: http://www.bailii.org/scot/cases/ScotCS/1732/Mor3113329-026.html Cite as:
[1732] Mor 13329
Whether the sale understood a lump bargain or by rental. When subjects turn out disconform to the rental. When part of the subject has been evicted. Relief to a purchaser for an incumbrance not known at the time of sale.
Cockpen v. Creditors of Cockpen
Date: 22 December 1732 Case No. No 26.
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After the proof of the rental was fixed, a tenant having quitted his possession, and the Lord's factor having let the same, at a public roup, L. 100 less than the proved rental, after intimating the same in the gazettes, and at the adjacent parish churches, but without applying to the Lords for a warrant, which regularly ought to have been done; whereby it happened that the lands were exposed to sale at the proved rental.; and having been bought at 27 years purchase, the purchaser, when he came to understand that the judicial rental was erroneous, insisted for a proportional abatement of the price; and here it was not alleged but that the factor had let the room at the true worth; and L. 100 yearly was a considerable article in an estate of 2000 merks a-year. The Creditors, who were his parties, pleaded, 1mo, That sales before the Lords are of the nature of lump bargains, where the rule is, ut caveat emptor; 2do, If they are underrtood as sold by a rental, the proved rental is the rule; to fortify which, the decision of the Creditors of Hallgreen was cited, 13th January 1725, No 25. P. 13328, where the Lords found, in general, that the purchaser can have no deduction from the proved rental by the rents falling lower, after the probation, and before the sale. To the first it was answered, That public sales are plainly by a rental. The first step taken is to fix the rent, the next, to fix the number of years purchase the lands may be worth. To the second, The proved rental is indeed the rule, but still upon supposition that it is the true rental at the date of the purchase; and truly selling by a rental implies as much; for what has the purchaser ado with any but the present rental? This is plainly the case of private sales, and no good reason can be given to difference public sales. The Lords found, that the purchaser is not entitled to any abatement of the price on account of any diminution of the rental betwixt the time of the judicial proof of the rental and the purchase. See Appendix.
