Dryburgh v Gordon
| Jurisdiction | Scotland |
| Judgment Date | 15 October 1896 |
| Docket Number | No. 1. |
| Date | 15 October 1896 |
| Court | Court of Session |
Lord Kincairney, Lord Justice-Clerk, Lord Young, Lord Trayner, Lord Moncreiff.
SaleSale of heritageObjection to titleInhibitionsObligation to clear record.
In an action by a purchaser of heritage for implement of an obligation by the seller's agents to produce searches shewing a clear record, the defenders tendered searches which disclosed two inhibitions used against the seller prior to the date of the disposition by him. The defenders alleged that the inhibitions were invalid.
Held (aff. judgment of Lord Kincairney) that whether the inhibitions were or were not valid, the defenders were bound to implement their obligation to clear the record by having them discharged.
Opinion (by Lord Kincairney, Ordinary) that an inhibition may affect a heritable right in the person of one who does not hold it by feudalised title.
On 26th September 1895 Alexander Dryburgh, grocer, Edinburgh, made an offer to William Shaw to purchase certain premises in Edinburgh belonging to him. The offer was accepted.
By disposition, dated 6th and 7th December, and recorded 10th December 1895, the subjects were conveyed to the purchaser. The disposition bore:I, William Shaw, proprietor of the several subjects hereinafter disponed, with consent and concurrence of Alexander Gordon, S.S.C., Edinburgh, and I, the said Alexander Gordon, for all right, title, and interest, competent to me in the said subjects, in virtue of (first) disposition by the said William Shaw in my favour, dated and recorded 28th February 1895, and (second) disposition by the said William Shaw in my favour, dated and recorded 25th July 1895, and we, the said William Shaw and Alexander Gordon, both, with joint consent and assent, in consideration of the sum of 979, 13s. 9d. sterling, instantly paid to me, the said William Shaw, by Alexander Dryburgh as the price thereof, of which sum I, the said William Shaw, hereby acknowledge the receipt, and discharge the said Alexander Dryburgh, do hereby sell and dispone to the said Alexander Dryburgh and his heirs and assignees whomsoever, heritably and irredeemably the subjects.
The deed contained the following clause of warrandice:And I, the said William Shaw, grant warrandice; and I, the said Alexander Gordon, grant warrandice from my own facts and deeds only.
On 7th December 1895 Messrs A. & A. S. Gordon granted to the purchaser the following letter:Dear Sir,With reference to the settlement of the purchase of the above, the price whereof has been received to-day, we undertake 6. To produce searches shewing a clear record as at 10th December 1895.
Founding on this letter, Dryburgh raised the present action against Messrs Gordon, concluding to have the defenders ordained to exhibit to the pursuer searches for incumbrances shewing that the subjects sold were free from all inhibitions and all other burdens.
The pursuer averred that the defenders had failed to implement their obligation,the searches they have exhibited having disclosed two inhibitions against the said William Shaw, raised on 13th and executed on 15th, and both recorded in the General Register of Inhibitions on 22d May 1895, discharges whereof the defenders refuse or delay to procure, whereby the present action has become necessary.
The defenders stated that Mr Alexander Gordon, one of the partners of their firm, had made advances to Shaw to enable him to complete his buildings, and had obtained from him an absolute disposition, which was recorded on 28th February 1895, and that this disposition was not qualified by any back-letter. The disposition, which was produced, bore to be granted for certain good and onerous causes and considerations not exceeding in all the sum of 600.
The defenders admitted that the searches referred to disclose two inhibitions, both recorded on 22d May 1895, long after the date of recording the first disposition in favour of...
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