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Scottish Court of Session Decisions >>
Drummond v Brown and Miln. [1741] Mor 1705 (21 February 1741)
URL: http://www.bailii.org/scot/cases/ScotCS/1741/Mor0401705-023.html Cite as:
[1741] Mor 1705
Effect of a Purchaser acquiring a Right preferable to that of his Author; and of Onerous Deeds granted by a Bona Fide Possessor.
Drummond v. Brown and Miln
Date: 21 February 1741 Case No. No 23.
The purchaser of part of the subjects, contained in a right, cannot, in bona fide, take advantage to the prejudice of his author, of any defect he may discover relative to the remainder.
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When a purchaser acquires a preferable right to that of his author, it is triti juris, that he cannot thereupon recur upon his author's warrandice, farther than to obtain payment from his author of the price paid by him for the preferable right.
But in this case a new point was determined, viz. That the purchaser of one or more subjects contained in an adjudication, thereafter acquiring a preferable right, cannot thereupon carry off from his author a subject, however separate, contained in the same adjudication, but must communicate to his author, and consequently to any deriving right from him, such separate right, upon his author's reimbursing him of the sum paid for said right.
The Lords considered that the purchaser of part of a subject contained in a right, may be thereby let into a discovery of its defects, and that bona fides does not allow that he should profit by such discovery, to the prejudice of his author's right to the remaining part of the subject.
Fol. Dic. v. 3. p. 93. Kilkerran, (Bona et Mala Fides.) No 1. p. 95.
