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Sir Robert Farquhar of Monie v Sir John Urquhart of Cromartie. [1665] 2 Brn 379 (25 January 1665)
URL: http://www.bailii.org/scot/cases/ScotCS/1665/Brn020379-0651.html Cite as:
[1665] 2 Brn 379
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.
Sir Robert Farquhar of Monie v. Sir John Urquhart of Cromartie
Date: 25 January 1665
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There is a disposition granted and subscribed by Sir John Urquhart of Cromartie to Sir Robert Farquhar of Monie in 1657, whereby he obliges him to infeft and sease the said Sir Robert in sundry lands, with the teind sheaves thereof, lying within the barony of Craigsintrie and Sheriffdom of Aberdeen; item, to make, subscribe, and deliver securities requisite thereanent; item, to warrant the same from all wards, releifs, &c. against all deadlie; item, from all ministers' stipends, annuities, cesses, &c. and all impositions whatsoever; item, to enter him to the possession of the said lands, (which he shall warrant to him as lawful,) and to the uplifting the maills thereof; item, to deliver him up the writs and evidents of the said lands. This disposition Monie registers in 1662; and then charges with horning to fulfil the said disposition in all the heads thereof; id est to deliver him up the evidents of the said lands; to warrant to him the said lands; to relieve him of some burdens and costs he had sustained; item, to refund him some farms and duties uplifted out of the said lands by Cromarty, or his chamberlains. This charge Cromarty suspended on thir reasons, 1mo, Because the said was altogether malicious against him, seeing there is not so much as an article or head of the said disposition that the suspender had not four years ago performed and fulfilled to the charger; as he had infeft him in the said lands; he had granted him all securities requisite thereanent; he had given up the evidents thereof; he had entered him to the peaceable possession of the same. But 2do, As to the obligement for warrandice, besides that the charge thereanent is general, he was altogether in mala fide, to vex the suspender therewith, seeing he neither does instruct nor can instruct any distress to infer warrandice. At the calling of this suspension, it was eiked for the suspender, that the said charger not qualifying any distress, as the truth is he is not actually distressed through the suspender his not implement of any clause of the said dispositipn wherein he stands obliged, there can be no warrandice pursued for by way of action; much less can there be any charges of horning raised for that effect. The charger's procurator declared that he passed from the suspender's oath, pro loco et tempore, and (giving in the special charge after following) craved certification against the suspender for not delivering to the charger of a sufficient heritable right of the teinds; for not purging of the lands of Middlethrid; item, for not delivering of the writs of the said lands: which condescendence being made, the Lords assigned to the suspender a term against which he should upon oath deliver up to the charger the writs of the said lands; item, should purge the said infeftment. And as to a valid right of the teinds, the suspender offering a registered contract betwixt the Earl of Errol and the suspender, containing a long tack of the teinds, the charger's advocate took the same up to see; which, after he had seen, having reproduced, he, upon certain reasons, refused to accept of the same as a valid right.
Whereupon the Lords, by their interlocutor, found the said contract did not satisfy the charge; and therefore assigned the suspender a day to produce a sufficient right to the said teinds, whereto he stood engaged by the disposition, with certification, &c. Which they failyieing to do, the term was circumduced against them; and the Lords found the letters orderly proceeded, aye and till the suspender should deliver to the charger a sufficient heritable right of the said teinds; item, should purge the said wadset; item, should deliver the evidents of the said lands, &c. conform as he stands obliged by the said disposition to the charger.
Suspender, Mr. Geo. M'Kenzie.Alt. Mr. David Thoirs.
Signet MS. No. 20, folio 44.
