Todd v. M'Carroll [1917] ScotLR 17 (16 October 1917)

Todd v. M'Carroll [1917] ScotLR 17 (16 October 1917)

The seller was unable to convey the full property as contracted, due to the reservation of minerals and the superior's right to work them without liability for damage, which deprived the purchaser of the right of support and the full subject of sale. The purchaser was therefore entitled to resile from the contract and was not bound to pay the price.

Citation
[1917] ScotLR 17
Parties
Pursuer (seller/reclaimer): William Todd; Defender (purchaser/respondent): Peter M'Carroll
Jurisdiction
Scotland
Judgment Date
16 October 1917
Procedural Posture
Civil (contract, Sale of Property) / Appeal (reclaiming Motion) From Lord Ordinary's Interlocutor
Outcome
action dismissed; decree of absolvitor for the defender (purchaser) with expenses; Lord Ordinary's interlocutor adhered to on appeal
Legal Topics
Sale of Heritable Property, Reservation of Minerals, Good Title, Breach of Contract, Right to Resile
Contract Law Property Law Sale of Heritable Property Reservation of Minerals Good Title Breach of Contract Right to Resile

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Parties

William Todd

Pursuer (seller/reclaimer)

Peter M'Carroll

Defender (purchaser/respondent)

Procedural Posture

Civil (contract, Sale of Property) / Appeal (reclaiming Motion) From Lord Ordinary's Interlocutor

Legal Issues

  1. 1 Whether the seller was able to convey a good and proper title to the property as contracted, given the undisclosed reservation of minerals and associated rights to the superior.
  2. 2 Whether the purchaser was entitled to refuse to implement the contract and avoid liability for the price due to the seller's inability to convey the full subject of sale.

Ratio Decidendi

The seller was unable to convey the full property as contracted, due to the reservation of minerals and the superior's right to work them without liability for damage, which deprived the purchaser of the right of support and the full subject of sale. The purchaser was therefore entitled to resile from the contract and was not bound to pay the price.

Court Disposition

action dismissed; decree of absolvitor for the defender (purchaser) with expenses; Lord Ordinary's interlocutor adhered to on appeal

Orders

  • Decree of absolvitor granted in favour of the defender (purchaser).
  • Pursuer's (seller's) action for damages dismissed.