[Court of Session—2d Division.]
| Jurisdiction | Scotland |
| Judge | Ld. Mackenzie |
| Judgment Date | 27 November 1827 |
| Court | Court of Session (Inner House - Second Division) |
| Docket Number | No. 42. |
| Date | 27 November 1827 |
Ld. Mackenzie.
Sale—Purging of Incumbrances.—
The property of Arklands, belonging to the late John Thomson, having been conveyed to trustees, with power to sell for behoof of his creditors, was by them exposed to public sale under articles of roup which stipulated that the exposers should not be bound to produce searches of incumbrances, as they only knew of an heritable bond specified, and the diligences of the creditors who had acceded to the trust-deed; but that if the purchaser should not rest satisfied with their assurance that there were no other incumbrances, and should within three months of the sale produce certified searches showing any other burdens affecting the property, the exposers should be bound “in that event to pay the expense of these searches, and relieve the lands of these other incumbrances.” Mitchell, having purchased the property, produced a search within the three months, showing, inter alia, an adjudication, dated the 30th of November 1785, of which the abbreviate was duly recorded, and he refused to pay the balance of the price till this incumbrance was purged. He further raised the present action against the trustees and creditors of Thomson, containing, besides the ordinary conclusions of a multiplepoinding, the special conclusion that they should be ordained to free and relieve the lands of all incumbrances prior to the date of the sale.
In defence it was stated, That the debt on which this adjudication had been led was long ago paid; that it had been conveyed to the late Mr. Thomson himself jointly with one Johnstone, whose representatives could not be discovered, and that the trustees would give a discharge for Thomson's interest. But it was pleaded by them that they were not bound to purge the record of this adjudication,
1. Because Mitchell did not deny their averment that the debt on which it was led had actually been paid; and,
2. Because it was prescribed.
The Lord Ordinary found, that except certain admitted incumbrances which did not include that in question, there were no burdens affecting the lands, and ordained Mitchell, on these admitted incumbrances being cleared, to pay the balance of the price; but Mitchell having reclaimed, the Court altered, and found that the trustees must purge the record of the adjudication in question, and remitted to the Lord Ordinary to proceed accordingly.
Lord Glenlee.—If the...
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