Mackay v Campbell
| Jurisdiction | Scotland |
| Judgment Date | 20 July 1966 |
| Date | 20 July 1966 |
| Docket Number | No. 29. |
| Court | Court of Session (Inner House - Second Division) |
2ND DIVISION.
Lord Cameron.
ContractTerminationSpecific implementSale by one missive of heritage and moveablesAction for implement of sale of heritage onlyCompetencyHeritable PropertyProcess.
A purchaser of heritable subjects together with the livestock and other moveables thereon raised an action against the seller in which he concluded for decree ordaining the seller to execute a disposition of the heritable subjects. The seller maintained that it was incompetent to sue for implement of only one part of a composite contract for the sale of both heritage and moveables.
Held that the action was competent.
ContractTerminationSpecific implementImplement or damagesSpecial hardship.
In an action by a purchaser against a seller for implement of missives of sale of heritable subjects, the seller pleaded that a decree ad factum praestandum should not be pronounced as it would result in special hardship to him. He averred that the ownership of the subjects had an incalculable sentimental value for him.
Held that the seller's averments were irrelevant.
FraudFacility and circumventionMissives of saleReductionSufficiency of avermentsForm of plea in law.
ProcessReductionFacility and circumventionForm of plea in law.
ProcessOrdinary actionAvermentsTest of relevancy.
In an action by a purchaser against a seller for implement of the missives of sale of heritable subjects, the seller pleaded that the missives should be set aside ope exceptionis on the ground that his signature thereto had been obtained by the purchaser "improperly while the defender was in a state of facility." He averred that he had signed the missives when in a weak and facile state of mind and easily imposed upon following an accident, at a time when he thought that he was dying and in any event would not be able to walk properly and look after the subjects. He further averred that the purchaser took "improper advantage" of his false belief about the severity and consequences of the accident, and, acting through his solicitor, "took advantage improperly" of his state of mind "by pressure to control the defender and so constrain him into signing" the document.
Held that neither facility nor circumvention had been relevantly averred.
Observed, under reference to Bremner v. BremnerUNK, 1939 S.L.T. 448, that a plea in law on the merits in such a reduction must include the phrase "fraud and circumvention" or at the least "fraud or circumvention."
Observed by Lord Walker, applying dictum of Lord Normand in Jamieson v. Jamieson, 1952 S. C. (H. L.) 44, at p. 50, that the defence was irrelevant only because it must necessarily fail even if all the defender's averments were proved.
ProcessDecree ad factum praestandumFailure of party to obtemper decreeRefusal to sign dispositionAuthority to Clerk of Court to sign disposition in his placeNobile OfficiumAdministration of Justice.
A purchaser of heritable subjects raised an action against the seller in which he concluded for decree ordaining the seller to execute a disposition of the subjects, and, alternatively, in the event of the seller failing to sign the disposition within one month from the date of that decree, for decree authorising the Clerk of Court to sign the disposition on his behalf. The Court pronounced the decree ad factum praestandum, but the seller failed to sign the disposition within one month from the date thereof.
The Court pronounced decree in terms of the alternative conclusion.
ProcessAppeal to the House of LordsDecree ordaining defender to sign dispositionFailure by defender to obtemper decreeMotion for authority to Clerk of Court to sign dispositionAppeal not lodged but still competentCompetency of motion.
A seller of heritable subjects refused to implement a decree ordaining him to execute a disposition of the subjects within one month from the date of the decree. When the month had expired the purchaser moved the Court to authorise the Clerk of Court to sign the disposition in place of the seller. The seller stated that he was considering an appeal to the House of Lords against the decree, and had three months from the date of the decree in which to lodge his appeal.
The Court on 20th July authorised the Clerk of Court to sign the disposition, but of consent superseded extract of the decree until the first sederunt day of the winter session.
John Mackay raised an action against Roderick Campbell. The conclusions and the parties' pleadings were extensively amended after the case reached the Inner House. In the following quotations from the closed record, the amendments are printed in italics.
The pursuer concluded, inter alia:"(1) For declarator that the defender has failed to implement and fulfil missives of sale between the pursuer and the defender dated 11th December 1963, and in particular has failed to make execute and deliver to the pursuer a valid disposition of all and whole the Islands of Taransay and Gaskir lying in the parish of Harris and county of Inverness and as described in the said missives of sale. (2) For decree ordaining the defender to implement and fulfil in all respects the said missives of sale within one month from the date of decree to follow hereon, and in particular to make execute and deliver to the pursuer a valid disposition of the said subjects, and to make and execute such other deeds as may be necessary in order to give the pursuer a valid title to the said subjects.1 (3) Alternatively, in the event of the defender failing to make execute and deliver to the pursuer a valid disposition of the said subjects and to make and execute such other deeds as may be necessary in order to give the pursuer a valid title to the said subjects within one month from the date of the decree to follow hereon to authorise and ordain the Clerk of Court to subscribe on behalf of the defender a disposition of the said subjects as adjusted at his sight and such other deeds as may be necessary in order to give the pursuer a valid title to the said subjects."
The parties averred, inter alia:(Cond. 2) "By missives of sale between the pursuer and the defender dated 11th December 1963 the pursuer agreed to purchase and the defender agreed to sell the islands of Taransay and Gaskir (hereinafter referred to as the subjects) lying in the parish of Harris and county of Inverness, together with the livestock and moveable property thereon as described in the said missives2 The defender's
averments in answer are denied except in so far as coinciding herewith and the averments following. In particular it is denied that following upon an accident in October or November 1963 the defender was in a weak and facile state of mind and easily imposed upon. Believed and averred that the said accident consisted of a fall in the old schoolhouse on Taransay as a result of which the defender strained a muscle in one of his legs. It is specifically denied that the pursuer exerted any pressure to constrain the defender to sign the said document. The history of the negotiations between the parties which resulted in the said concluded bargain of 11th December 1963 was as follows. [There followed a narrative of the negotiations, including averments that on 18th November 1963 the defender wrote and both parties signed a document which purported to be a sale of the subjects, excluding certain cattle, to the pursuer at a price of 10,250, and ending with the pursuer's oral agreement to pay 16,000 for the whole subjects.] On the morning of 11th December the pursuer telephoned Mr Kesting [his solicitor] and told him that as a result of a telephone conversation with the defender the previous evening at the pier at Stornoway he had agreed to the price being increased to 16,000. The pursuer instructed Mr Kesting to adjust formal missives at that price. Mr Kesting did so and took them to Lewis Hospital for the defender's signature on the morning of 11th December 1963. The defender made one stipulation before signing the acceptance of the offer. It was that the price be apportioned as to 8000 on the heritable property and 8000 on the stock, livestock, etc., instead of 7000 and 9000 respectively, explaining that this might save him income tax on the sale of the livestock. Mr Kesting made the appropriate alteration and the defender signed the documentWith reference to the defender's averments added by way of amendment, not known and not admitted that the defender believed he had no option but to sign said missives dated 11th December 1963. Explained that the said Mr Kesting in answer to a question from the defender had stated that in his opinion the agreement dated 18th November was a valid agreement. It is averred that Mr Kesting's opinion as stated was well founded." (Ans. 2) "The said pretended missives of sale are referred for for their terms. Believed to be true that the said pretended missives of sale were brought to Lewis Hospital on 11th December 1963 by the said Mr Kesting on behalf of the pursuer. Admitted that the defender signed the said pretended missives of sale. Admitted that the pursuer sought to purchase the said island and livestock from the defender on 18th November 1963, which was two days after the defender's operation, at a price of 10,250. Believed to be true that the defender then signed a paper which is referred to for its terms under explanation that the pursuer thereafter told the defender that he was caught by what he had signed. Admitted that the defender thereafter got the pursuer to raise the price for the said subjects and livestock in said pretended agreement namely 10,250 to 15,500 and 16,000, respectively. Believed to be true that the pursuer instructed said Mr Kesting to adjust missives of sale at the price of 16,000. When the said Mr Kesting visited the defender in Lewis Hospital and obtained the defender's signature to said pretended missives of sale the defender had been led to believe by the pursuer and said Mr Kesting that by...To continue reading
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Patricia Ann Simpson Or Morris V. James Gavin Morris
...Ltd v Swears and Wells Ltd 1985 SC 189, per Lord President (Emslie) at page 194; an example of a such a plea appears in McKay v Campbell 1966 SC 237 at page 243). It seems to me that the averments on behalf of the defender are entirely lacking in this respect and are wholly insufficient to ......
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Mackay v Campbell
...the case not being one in which circumvention would be assumed, the defences were irrelevant. (In the Court of Session 20th July 1966–1966 S. C. 237.) John Mackay brought an action against Roderick Campbell. In the following quotations from the closed record the passages in italics were ame......