Scottish Court of Session Decisions

Subject_1 LOCUS POENITENTIAE.
Subject_2 SECT. III.

What writing sufficient to bar Locus Pænitentiæ. - Ubi res not est integra. - Rei interventus. - Oath. - An informal writing does not bar Locus Pænitentiæ. - Promise to ratify an informal writing bars Locus Pænitentiæ.

Moodie
v.
Moodie

Date: 21 June 1745
Case No. No 42.

One of three heirs portioners having bought her prececessor's estate at a roup, in consequence of a bargain with one of the others to accept of a certain sum as her share, that other was found not entitled to resile.

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The rule by which it is to be judged, whether res be non integra, so as to exclude the locus pænitentiæ, was laid down to be this, that wherever any thing has happened on the faith of the verbal agreement, which cannot be recalled, and parties put in the same place as before, then res is understood not to be integra, and that there is no longer locus pænitentiæ.

And by that rule it was, that in this case, where three sisters, Elizabeth, Agnes, and Ann Moodies, heirs portioners of Ardleckie, finding the lands could not be conveniently divided, had agreed to set them up to roup among themselves, and Ann the youngest sister, intending to be purchaser, had concerted with Agnes, that without regard to the price which the lands should yield at the roup, in case Ann should be preferred, Agnes should accept of 7000 merks as her third part, with a burden of the proportion of the eldest sister's præcipuum; and on the faith of this verbal agreement, Ann had made the highest offer, and been preferred; but Agnes refused to accept of the 7000 merks, in respect the concert being only verbal she might resile; the Lords found, “That there was here no locus pænitentiæ, and that the defender was bound to accept of the 7000 merks, with deduction of the third of the praecipuum.

Fol. Dic. v. 3. p. 395. Kilkerran, (Locus Poenitentiae.) No 1. p. 340. *** D. Falconer reports this case.

Elizabeth, Ann and Agnes Moodies, the daughters and heirs portioners of John Moodie of Ardleckie, came to an agreement, that the estate should belong to the one of them who should be the highest offerer at a roup amongst themselves, and the price be equally divided, allowing first a certain præcipuum to Elizabeth, as the value of the mansion-house, &c.

It was alleged, Ann and Agnes had made a verbal contract, that, to encourage Ann to bid for the lands against Elizabeth, Agnes should accept of 7000 merks for her share, whether the price of the purchase were higher or lower.

Ann accordingly bought the estate, and offering to pay Agnes with 7000 merks, she refused, and pleaded, that in bargains of buying of land, there was locus pænitentiæ till the compact were completed by writing.

Pleaded for Ann, There can be no locus pænitentiæ, where res non est integra; and here the purchaser was induced by this bargain to give more than otherwise she would have done.

The Lords, 21st June, “found there was no locus pænitentiæ.”

Pleaded in a reclaiming bill, That, by the terms of the libel raised by Ann, the agreement was said to have been notwithstanding of the articles of roup, which implied it to have been subsequent to them; and this which was the only thing that had the appearance of relevancy, as any prior paction was passed from by signing the articles, the petitioner absolutely denied.

A paction prior to the articles, being neither directly acknowledged, nor absolutely denied by this petition; the Lords adhered in determining the relevancy.

Reporter, Lord Dun. Act. Lockhart. Alt. Ferguson. Clerk, Hall. D. Falconer, v. 1. p. 113.