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Scottish Court of Session Decisions >>
John Gray v James Hamilton and Others. [1801] Mor 32_3 (23 January 1801)
URL: http://www.bailii.org/scot/cases/ScotCS/1801/Mor32SALE-002.html Cite as:
[1801] Mor 32_3
A deduction from the price of a farm on account of its falling short of the measurement specified in the articles of roup, refused.
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The grandfather of James Hamilton, in 1740, obtained a feu of the three farms of South Craigend, North Craigend, and Garthamlock. All these farms lay contiguous, and were thus described in the feu-charter:
“The lands of South Craigend, and whole houses thereon, consisting of sixty acres or thereby, with liberty and privilege to the tenants and possessors of the said lands of South Craigend, of casting and winning peats and turf in Craigend Muir moss, for the use of their families allenarly; the lands of North Craigend or Comedie, consisting of ninety four acres or thereby, including the moss thereon, and the lands of Garthamlock, and housing thereon, consisting of one hundred and forty-one acres or thereby, burdened with the present highways, with the hail parts, pendicles, and pertinents of the said respective lands.”
In 1795, James Hamilton exposed two of these farms to public sale, viz. South Craigend and North Craigend. In the articles of roup, the description of the lands was taken verbatim from the original title-deeds. In particular, the description of North Craigend was in the following words:
“All and hail the lands of North Craigend or Comedie, consisting of ninety-four acres of land or thereby, including the moss therein, hail parts, pendicles, and pertinents of the said respective lands.”
John Gray purchased North Craigend.
After being a considerable time in possession, he discovered that the farm contained only about seventy-seven acres.
In a multiplepoinding raised for dividing the price among Mr. Hamilton's creditors, Gray claimed an abatement corresponding to the number of deficient acres.
Answered for Mr. Hamilton and his creditors: The specification of acres in the articles of roup is descriptive, not taxative; and as the purchaser has got the whole lands known by the name of North Craigend, an error as to the quantity of acres will not entitle him to any deduction from the price. At most it can only entitle him to void the sale, and to this the respondents have no objection; 26th January 1785, Hannay, No. 30. p. 13334.
Replied: Granting the respondents' doctrine to be well founded in the case of a total sale, it will not hold under the present circumstances, as the seller here retains a contiguous subject, and the insuperable presumption is, that he is still in possession of part of the lands which he actually sold.
The Lord Ordinary “repelled John Gray's claim.”
On advising a reclaiming petition, with answers, the Court were a good deal divided. By one of the Judges, who was for altering the interlocutor, it was asked, if a shop keeper sold ninety-four yards of cloth, and delivered only seventy-seven, would not the purchaser have a claim for the other seventeen, although the seller could shew that the quantity delivered was worth the price which had been paid?
But a considerable majority thought the interlocutor right. No fraud (it was observed) is here alleged, and therefore the purchaser must take his option, either to abandon the purchase altogether, or be contented with what he has got.
One Judge having expressed a suspicion, that part of the lands of North Craigend might, by an alteration of marches since the date of the original feu-contract, have been united to Garthamlock; the Court, while they adhered to the judgment of the Lord Ordinary on the question of law, remitted to his Lordship to inquire into that point.
The interlocutor of the Court was in these words:
“Find, there is no ground in this case for any deduction from the price, and in so far adhere to the interlocutor of the Lord Ordinary reclaimed against; but remit to his Lordship to hear parties, how far any circumstances occur in this case that may afford any other ground for the petitioners' claim of relief, and to determine therein as to his Lordship shall seem just.”
Lord Ordinary, Cullen.Act. Archd. Campbell.Alt. Grahame.Clerk, Sinclair.
Fac. Coll. 213. p. 484.
