Scottish Court of Session Decisions

Subject_1 JUS SUPERVENIENS AUCTORI ACCRESCIT SUCCESSORI.
Subject_2 SECT. II.

Where the Author is not liable in Warrandice.

Crawford
v.
L Murdiston.

Date: 10 March 1636
Case No. No 10.

A vassal's right having fallen by the forfeiture of his mediate superior, the gift of forfeiture purchased in by the immediate superior, was found to accresce to the vassal.

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The Lady Murdiston being divorced from her husband, in whose contract of marriage, her hushand was obliged to provide her to the liferent of all lands to be conquest by him after the said contract; to which clause she having made Malcolm Crawford assignee, who charging the Laird of Murdiston her husband, from whom she was divorced, for his fault of adultery, to infeft her in the lands of, which were a part of the ten pound land of Murdiston, and were disponed by his umquhile goodsir to Charles Gray heritably, to be holden of the L. Murdiston, and his heirs, and which L. Murdiston held the same of the Earl of Bothwell; in the which infeftment, granted to Gray by Murdiston's goodsir, his said goodsir obliged himself, and his heirs, to warrant the lands from all dangers and inconveniences, &c. contra omnes mortales, conform to the common clause of warrandice; from the which Gray, the said of Murdiston defender had bought his said right, and given a price to him therefore convened upon; and so thereby the Lady and her assignee alleging this to be a conquest of these said lands, she therethrough claimed her liferent thereof, conform to the said contract of marriage. In this process it being alleged, that the acquiring of these lands, could not be found a conquest, because the L. Murdiston defender lost all the lands himself, and consequently Gray his vassal lost that part which he held of him, by reason of the forfeiture of the Earl of Bothwell, Murdiston's superior, which forfeiture did so extinguish the right of property alleged to be in Gray's person, being base and unconfirmed, that there remained no real right in Gray's person which he had to sell, or the acquiring thereof can be reputed conquest, and which forfeiture having preceded the alleged time of the acquiring of the right by the defender from Gray, it cannot be esteemed the acquiring of any heritable right, as conquest, but only a satisfaction for the vassal's kindness; and the pursuer replying that it was a conquest, seeing he bought from Gray his heritable right by an express contract of emption and vendition, neither can the preceding forfeiture be obtruded, seeing the right of that forefaultry was established in the same defender's person, before he acquired the right from Gray; which defender being heir to his goodsir, disponer of the lands to Gray, and so subject in warrandice thereof, that supervenient right of forfaultry becoming in his person, who was heir to the disponer, and holden to warrant, as said is, behoved to accresce to Gray, and to make his heritable right to revive and convalesce, at least contra eum, who is in effect his author, being heir to his author, and who could never have distressed Gray thereby; seeing in law jura venditoris emptori prodesse non ambigitur; and seeing he was and is holden to warrant, he cannot obtrude the forfaultry, quia quem de evictione tenet actio, eundem agentem repellit exceptio; and thereby it appears, that the right subsisted in Gray's person, notwithstanding of the forefaultry, seeing the right of the forefaultry was devolved in his person, and consequently the purchasing of the lands by him from Gray, must be found conquest; in this process, it being alleged for the defender, That the superveniency of the forefaultry, in the person of the heir of the disponer of the lands to Gray, could not make Gray's right, which was once extinguished, to be renewed; for there could be no superveniency, but where there was a real extant, standing right, which was not here the same, being suppressed by the forefaultry; and seeing it was the heir, who acquired the forefaultry, who, albeit he might be holden to warrant, as is alleged, (which he also denied) yet thereby there could be no superveniency to make a real right revive, which once was extinguished; albeit that superveniency had been in the person of him who first disponed the lands, it might have been probably alleged, that the superveniency was real, but not so in his heir, against whom there can be no ground, but a pretence of warrandice; and it being also alleged, that the heir could not be holden to warrant, because in such cases there could be no warrandice for the forefaultry of the superior, and it is against law, to extend warrandice thereto; and the pursuer answering, that he is expressly obliged to warrant contra omnes mortales; and it being also questioned, if this ought to be imputed as a fault of the buyer, that he sought not confirmation of his own right, to have thereby saved it from the superior's forefaultry, or if it was the fault of his author, who was obliged to warrant, and who, in respect that he was subject to warrant, ought to have foreseen the hazard of forefaultry, and so that it was his fault, the not confirmation;—The Lords found, notwithstanding of all that was alleged in the contrary, by the defender, that the purchasing of the lands foresaid was a conquest, and that the wife ought to have the liferent thereof; and that the forefaultry did not derogate, but that it was a conquest, seeing the right thereof was devolved in his person, who was holden to warrant, who so having the right, could not obtrude the same against that right, which he was holden to warrant; so that albeit it might be questioned, whether there should be warrandice against a forefaultry of the superiors, yet seeing that right of forefaultry was become in the person of the heir of him who sold the lands, that heir could no more object that forefaultry, inherent in his own person, against his own vassal, than the first seller might have done; so that albeit a third party might have evicted the lands, by reason of the forefaultry from Gray, quo casu the warrandice against Murdistoun had been more disputable, yet being in Murdistoun's own person, it was found, he could not thereby distress his said vassal; seeing in effect it was factum suum, from which he could make no pretext to eschew warrandice; and therefore the purchasing thereafter of Gray's right from him, by an express emption, was found conquest, as said is.

Act. Nicolson. Alt. Advocatus & Stuart. Clerk, Gibson. Fol. Dic. v. 1. p. 514. Durie, p. 803.