Lowe and Another v. Gardiner [1920] ScotLR 230 (30 November 1920)

Lowe and Another v. Gardiner [1920] ScotLR 230 (30 November 1920)

Defender's possession was not precarious but based on legal entry under a conditional contract of sale; rescission by pursuers did not render possession precarious; summary ejection was not competent, and the proper remedy was action of removing.

Citation
[1920] ScotLR 230
Parties
Pursuer: Mrs Emma Christina Lowe or Thomson; Pursuer: James Robert Lowe; Defender: James Gardiner
Jurisdiction
Scotland
Judgment Date
30 November 1920
Procedural Posture
Summary Ejection and Interdict / Appeal From Sheriff and Sheriff Substitute
Outcome
action dismissed
Legal Topics
Summary Ejection, Precarious Possession, Conditional Contract of Sale, Rescission of Contract, Remedies for Breach of Contract
Property Law Contract Law Civil Procedure Summary Ejection Precarious Possession Conditional Contract of Sale Rescission of Contract Remedies for Breach of Contract

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Parties

Mrs Emma Christina Lowe or Thomson

Pursuer

James Robert Lowe

Pursuer

James Gardiner

Defender

Procedural Posture

Summary Ejection and Interdict / Appeal From Sheriff and Sheriff Substitute

Legal Issues

  1. 1 Is summary ejection competent where possession is based on a conditional contract of sale and not precarious?
  2. 2 Does rescission of contract by seller render purchaser's possession precarious?
  3. 3 What is the proper remedy for seller when purchaser fails to pay balance of price under conditional sale?

Ratio Decidendi

Defender's possession was not precarious but based on legal entry under a conditional contract of sale; rescission by pursuers did not render possession precarious; summary ejection was not competent, and the proper remedy was action of removing.

Court Disposition

action dismissed

Orders

  • interlocutors of Sheriff and Sheriff-Substitute recalled
  • second plea-in-law for defender sustained