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Scottish Court of Session Decisions >>
Bruce v Laird of Pittencrieff. [1604] Mor 16567 (27 January 1604)
URL: http://www.bailii.org/scot/cases/ScotCS/1604/Mor3816567-004.html Cite as:
[1604] Mor 16567
When the principal lands are evicted, the purchaser has right to possession of the full rents of the warrandice lands until he be completely reimbursed.
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George Bruce having bought certain lands from the Laird of Pittencrieff, and being infeft in warrandice thereof in the lands of Pittencrieff, the principal lands being evicted, George Bruce pursued Pittencrieff and his tenants to remove from the lands of Pittencrieff. It was alleged by the defenders, that the pursuer being infeft in the lands libelled only in warrandice of the principal lands, he could never have action of remeid therefore, unless the principal had been evicted, and that he had obtained a declarator thereupon decerning him in respect thereof to have recourse to the principal; 2dly, The warrandice could not exceed the avail of the principal, and it is of verity, that the principal lands were only worth five chalders of victual, and the lands of Pittencrieff were worth twelve chalders; and therefore in case it were found that the principal were evicted, yet the pursuer could have no farther warrandice but according to the avail of the lands evicted. It was answered, That the eviction of the principal lands was sufficiently known by a pursuit moved by Weims sister to the Laird of Pittencrieff, who, upon an obligation made to her by her said brother of 2,000 merks, having served inhibition before the said George Bruce's infeftment, pursued him for reduction thereof; and after litiscontestation made, and probation renounced to stay the decreet, he was forced to pay to her the said sum, and so the lands were to be repute evicted. Likeas, he was decerned to pay to the Guidman of Tibbermure, certain annual-rents out of the said lands conform to an anterior infeftment he had thereof before the said George's infeftment; and last Pittencrieff had set a part of the land to George for chalders victual which he had set in tack before for £17, whereof there were many years to run. The Lords repelled the exceptions, in respect of the reply and process at the pursuer's instance, ay and while the defender relieved the said George Bruce from distresses qualified in the principal.
