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Scottish Court of Session Decisions >>
Hunter v Wilsons. [1667] Mor 10067 (13 December 1667)
URL: http://www.bailii.org/scot/cases/ScotCS/1667/Mor2410067-001.html Cite as:
[1667] Mor 10067
A house being bought, and thereafter burnt, the damage was found to fall on the buyer.
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Hunter having charged Wilsons for payment of 500 merks contained in their bond, they suspended on this reason, the bonds bears expressly, that the same should not be paid till the suspender be put in possession of a tenement of land in Glasgow, for a part of the price whereof the bond was granted; ita est, they neither were nor can be put in possession, because the house was burnt in the conflagration in Glasgow. It was answered, Non relevat, because after perfecting the vendition periculum est emptoris, and therefore this being an accidental fire, wherein the seller was no ways in culpa nor in mora, in respect, that at that time there was a liferenter living, whose liferent was reserved in the disposition. It was answered, That albeit in some cases the peril be the buyer's, yet where there is an express obligement, that no payment shall be until possession, by that express paction payment cannot be sought. It was answered, That the buyers had taken possession after the burning, and had built the house. It was answered, That the possession of the ground cannot be said the possession of the house; terra non est domus; and therefore, this being but a small part of the price, in such a calamitous case the suspenders ought to be liberate thereof.
Notwithstanding of all these allegeances, the Lords found the letters orderly proceeded. Here the buyer was infeft before the burning, and did voluntarily take possession after the burning.
