Pender-Small v. Kinloch's Trustees [1917] ScotLR 274 (09 February 1917)

Pender-Small v. Kinloch's Trustees [1917] ScotLR 274 (09 February 1917)

The contract for the sale of the lands and the assumption of the annuity burden was one and indivisible. Both parties were aware of the pending litigation affecting the annuity and took the risk of its outcome; there was no mutual essential error. The pursuer's remedy, if any, would be rescission of the whole contract, not partial repayment. The action for repayment of the capitalised value of the annuity was incompetent and must be dismissed.

Citation
[1917] ScotLR 274
Parties
Pursuer: John Stewart Menzies Pender-Small of Dirnanean (with consent and concurrence of James Stewart Robertson and another, testamentary trustees of the late James Small of Dirnanean); Defenders: William Joseph Starkey Barber-Starkey of Aldenham Park, Shropshire, and another, marriage-contract trustees of Sir John and Lady Kinloch; Defenders (for Any Interest): Free Church of Scotland and others; Defenders (for Any Interest): General Trustees of the United Free Church of Scotland
Jurisdiction
Scotland
Judgment Date
09 February 1917
Procedural Posture
Civil / Appeal (reclaiming Motion) From Lord Ordinary to Inner House, First Division
Outcome
Action dismissed; interlocutor of Lord Ordinary recalled; defenders' third plea-in-law sustained.
Legal Topics
Sale of Heritage, Real Burdens, Mutual Error, Remedies for Error, Indivisibility of Contract, Rescission Vs. Reformation, Competency of Action
Contract Law Property Law Sale of Heritage Real Burdens Mutual Error Remedies for Error Indivisibility of Contract Rescission Vs. Reformation +1 more

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Parties

John Stewart Menzies Pender-Small of Dirnanean (with consent and concurrence of James Stewart Robertson and another, testamentary trustees of the late James Small of Dirnanean)

Pursuer

William Joseph Starkey Barber-Starkey of Aldenham Park, Shropshire, and another, marriage-contract trustees of Sir John and Lady Kinloch

Defenders

Free Church of Scotland and others

Defenders (for Any Interest)

General Trustees of the United Free Church of Scotland

Defenders (for Any Interest)

Procedural Posture

Civil / Appeal (reclaiming Motion) From Lord Ordinary to Inner House, First Division

Legal Issues

  1. 1 Whether the contract for sale of land and assumption of annuity burden was one indivisible contract or two separable contracts
  2. 2 Whether mutual essential error existed as to the subsistence of the annuity burden at the time of sale
  3. 3 Whether the pursuer was entitled to recover the capitalised value of the annuity on the ground of error

Ratio Decidendi

The contract for the sale of the lands and the assumption of the annuity burden was one and indivisible. Both parties were aware of the pending litigation affecting the annuity and took the risk of its outcome; there was no mutual essential error. The pursuer's remedy, if any, would be rescission of the whole contract, not partial repayment. The action for repayment of the capitalised value of the annuity was incompetent and must be dismissed.

Court Disposition

Action dismissed; interlocutor of Lord Ordinary recalled; defenders' third plea-in-law sustained.

Orders

  • Action dismissed
  • Interlocutor of Lord Ordinary recalled