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.

George Lockhart of Carnwath
v.
John Baillie of Walston

Date: 23 December 1709
Case No. No 37.

A missive of sale signed by both parties was not delivered by one of them; yet the sale was found complete, and no locus pænitentiæ

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At a treaty of agreement betwixt John Baillie of Walston and John Hamilton writer to the signet, about the sale of Walston's estate to George Lockhart of Carnwath, a minute of sale being drawn up, signed by Walston, and given to John Hamilton, upon his obligement to procure some prestations from Carnwath, and to cause him subscribe the minute under the pain of L. 500 Sterling; and Carnwath having signed and got up the minute from Mr Hamilton, he thereupon charged Walston to implement the same; who suspended and repeted a reduction upon this ground, that he resiled from the bargain, and there was locus pænitentiæ, in so far as, 1mo, The minute charged on is no delivered evident, the charger not having received it from Walston, but from only John Hamilton, who had no warrant to give it up to him, but only to procure his subscription to it. And it were unreasonable, that Walston should be bound to Carnwath by that copy of the minute now in his hand, before he were equally bound to Walston by delivering another signed double to him; till which time the bargain was incomplete, and might be resiled from by Walston; as Carnwath might have shaken himself loose of it, by throwing the signed minute in the fire, or cancelling his subscription. For to sustain such an unwarrantable delivery by a mandatar, qui excessit fines mandati, would open a door to all manner of fraud; at which rate it should be in the power of any mercenary agent, to surrender his client's bonds to his debtors; 2do, The price of the lands was not clearly determined by the minute, which bears only “21 years purchase of the free money and victual rent payable out of the lands, conform as the same shall be proven to have paid at the suspender's father's decease, or his own entry, counting the chalder of victual at ——— the chalder;” which blank in the minute could not be filled up without consent of both parties; and contracts of sale are never understood to be perfected while the price is left uncertain, which is then only certain, when certa quantitas exprimitur, vel de quo constat per relationem ad rem certam. 3tio, The prestations on Carnwath's part, contained in Mr Hamilton's obligement to Walston, are pacta ex incontinenti adjecta, the obligement being of the same date with the minute, and expressly relative thereto; and while these things are unperformed by Carnwath, the bargain is still open unconcluded.

Answered for the charger; 1mo, When a subscribed writ is once out of the granter's hands, and in the hands of a third party, who delivers it to him in whose favours it is conceived; law presumes that he had a mandate or commission for delivering of it, unless the contrary be proved by writ or oath of the receiver. The pretended inconvenience to Walston, by Carnwath's being sole master of the minute, did not hinder the bargain to be completed; yea, the the minute in his hand was a common evident for both; upon which Carnwath could not sue without performing his part; and for recovery thereof or an extract, action was competent to Walston; and had Carnwath destroyed it, the tenor might have been made up against him by his oath, and other habile methods of proving tenors. It is no paradox in law, that a debtor becomes free upon getting up his bond from the creditor's trustee, who had counteracted his trust; for no man gives trust without running hazard by the trustee's proving unfaithful. 2do, The reason founded on the blank in the minute, and uncertainty of the price, is of no weight; for the price was determined before Walston signed the minute, to 21 times the value of the yearly product of the subject sold. And the taking an obligement from Hamilton the trustee under a penalty to procure Carnwath's subscription to the minute, did as fully empower him to fill up the blank, and liquidate the value of nine or ten chalders of victual, the rest of the rent of being paid in money; as the having of the minute empowered him to deliver it; and ita est, that the blank was filled up before the minute was delivered to Carnwath; so that the principle of the common law, that emptio non est perfecta before adjusting of the price is misapplied, the price here being fully determined before delivery of the minute, 3tio, The prestations that Mr Hamilton engaged Carnwath should perform, cannot be reckoned pacta ex incontinenti adjecta to the sale; because not undertaken by Carnwath the purchaser, but only by Mr Hamilton, as taking burden for him. Nor doth Carnwath's not performing these conditions, (suppose he were liable for them) annul the bargain, but only afford action to Walston against him to perform. Besides, Carnwath is ready to perform his part of the minute; upon Walston's performing what is incumbent upon him, which is to satisfy the desire of the charge by granting a valid disposition in the terms of the minute.

The Lords found, that the minute of agreement charged on, being signed by both parties, and in Carnwath's hands, was a complete minute and bargain, and there was no locus pænitentiæ; and therefore repelled the whole reasons of suspension and reduction.

Forbes, p. 374. *** Fountainhall reports this case:

1709. December 25.—John Baillie of Walston, by a minute of sale in June last, sells his lands of Walston to George Lockhart of Carnwath, at twenty-one years purchase, at the rental the lands paid when his father died; and Walston being charged to implement and grant a disposition in terms of the minute, he suspends, and raises reduction on these reasons; 1mo, That though a clear minute may be obligatory, yet where a heap and shoal of questions and debates will arise in the interpretation and extension thereof, law has allowed either party room to resile ay till it be perfected; but here infinite controversies will arise on the rental, and the determination of the price, so that law will never fetter a man into such a blind indefinite bargain; and thus the common law gives relief, § 1. Instit. De empt. et vendit. pænitentiæ locus est donec instrumenta completiones suas acceperint, et fuerint omnibus partibus absolutæ. And the l. 17. C. De fide instrum. says the same; which our decision in 1663, Montgomery, No. 25. p. 8411. has exactly followed; and Dirleton, in his Doubts and Questions, voce Locus pænitentiæ, inclines to the same opinion. Answered, If we have any fixed principle in our law, that of minutes being as obligatory as extended writs, is one; and the case cited no ways concerns or infringes it; for there it was expressly pactioned that the parties were at freedom till all was perfected. The Lords repelled this first defence. Then Walston repeated his second reason of suspension and reduction, that it was never a delivered evident, nor interchanged, seeing he offers to prove by Carnwath's oath, that he did not receive it from Walston, but from one John Hamilton, the writer of it, who had no power to deliver it; and so it was found, as Durie observes, Byres contra Johnston, No. 15. p. 8405. Answered, The minute being now in Carnwath's hands, it cannot be taken out of it but by his writ or oath; and he acknowleges he got it from Hamilton, but proves by an obligement under Walston's hand to the said John that he fully empowered him to deliver it, for he engages to give him half a year's purchase of the lands if he accomplish the bargain. And as to interchanging and delivery, my Lord Stair assures us it is not requisite in mutual contracts or minutes, B. 1. T. 7. § 14. and was so decided, 30th June 1625, Crawford contra Vallances, voce Proof. The Lords repelled this reason likewise. Walston's 3d reason was, That the minute and bargain was incomplete, because the price was not determined, and a blank left as to the yearly value of the victual-rent; and those defects being in substantialibus vitiate the whole, as is clear from D. Tit. De empt. vendit. Quamdiu pretium incertum et indefinitum est, emptio est imperfecta, nec nulla nascitur obligatio. Answered, That the price was sufficiently as certained; for it was at 21 years purchase, and the price was liquidated in one of the minutes, (though it stood blank in the other) at L. 100 the chalder, which was a very competent adequate price; and though the total price was not summed till the rental was constituted, yet law reputes these things certain quæ non morantur obligationem, but are liquidated per relationem ad aliud, as here it is bought at the rental it paid when Walston's father died, about fifteen years ago. The Lords repelled the third reason. Walston alleged in the fourth place, That he had a reversion granted him to redeem his lands any time within twenty-one years at the price now paid; and so he could redeem within a month or two, et frustra petis quod mox es restituturus. Answered, The tenor of the reversion is mightily mistaken; for it cannot be exercised till the twenty-one years be run, and then it must be with his own money, and at the rental the lands shall then pay, with consideration of any improvements or meliorations made upon the land medio tempore; and reversions being strictissimi juris, must be taken in the precise terms in which they are granted, and admit of no extension. The Lords also repelled this reason, and found Walston obliged to implement and extend the minute in the terms of his obligement.

1710. February 1.—In the case mentioned supra at the 23d December 1709, betwixt Baillie of Walston and Lockhart of Carnwath, it was further alleged, That the minute of sale was null, being only subscribed by two witnesses, whereof one of them being infamous infamia juris, he was no witness in law, viz. Francis Garden of Midstrath, in so far as there was a decreet of improbation of a bond of thirlage obtained by Ross of Tullisnaught in 1687 against him, finding him accessory to the forgery, and ordaining it to be cancelled, and so was inhabile by the 80th act of Parliament 1579, requiring all writs to be subscribed before famous witnesses. Answered, Though this objection might operate against him if he were adduced to swear in a judicial process for proving some matter of facts, yet to this hour such an allegeance was never proponed against an instrumentary witness to a paper, where their subscription attests nothing but the verity of the party's subscription; and against such, no exception lies, though they be domestic servants, children in familia, or pupils, none of which would be admitted to depone in judgment; for they being chosen by mutual consent of both parties, cannot be afterwards quarrelled. And what condition would men be in, if they behoved to search and examine the lives and conversations of the witnesses they adhibit to their transactions, if at any time they have been pursued or convicted for any crime? How uneasy and impracticable would this render all business? But there is no necessity of any such trial here, for Midstrath was none of Carnwath's chusing, yea, not so much as known to him, but one of Walston's comrades, and it were fraudulent in him to object against a witness used by himself; and the act of Parliament cited is misapplied, for it is only speaking of witnesses to notorial subscriptions, and even in that case habit and repute would be sufficient. The Lords repelled the objection against the witness, and found it no nullity, though he was a subscribing witness to the minute, being chosen by mutual consent, and more of Walston's acquaintance than Carnwath's.

Fountainhall, v. 2. p. 545. & 561.