Scottish Court of Session Decisions

Subject_1 WARRANDICE.

Watson
v.
Law

Date: 15 July 1667
Case No. No. 43.

Absolute warrandice in a disposition of lands found not to extend to warrant lands designed for a horse and cow's grass by a subsequent law.

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In the process Watson against Law, it was found, That kirk-lands are obliged to warrant from the designation of a glebe; though it was alleged, that ex natura rei, and not ex defectu juris, the said glebe was evicted.

Thereafter it was found in the same cause, That the designation being as to cows, and horse grass, and upon a law supervenient after the disposition, viz. an act in the late Parliament, the disponer ought not to warrant from a supervenient law.

Dirleton, No. 93. p. 37. *** Stair reports this case:

James Law having disponed certain lands to John Watson, with absolute warrandice, and after the disposition there being a designation of a part of the land for horse and kine's grass to the Minister, conform to the act of Parliament 1661; Watson pursues for warrandice upon that distress. The defender alleged, absolvitor, because the distress is by a subsequent law, falling after the disposition. It was answered, first, That absolute warrandice does even take place in the case of a subsequent law, at least in so far as the pursuer suffers detriment; because, if the lands had continued, the defenders had been so burdened, and therefore is liable in quantum lucratus est; 2dly, This is no supervenient law, because the act of Parliament 1661 is a reviving of the Parliament 1649, which being rescinded in the said Parliament 1661, by a posterior act thereof, concerning manses and glebes, is declared to be valid, as if it had been made in the year 1649. It was answered to the first, That nothing can infer eviction or recourse, but that which had a cause anterior to the warrandice, unless it had been otherwise expressed; nor is it any ground, that if the disponer remained heritor, he had been liable, otherwise all other supervenient burdens would return, not only upon the immediate, but upon all the disponers; but all such accidental superveniencies are upon the purchaser's hazard, as well as the advantages are to his benefit. To the second, The time of this disposition, the Parliament 1649 was rescinded, and the new act was not enacted; neither by the new act is it declared to be effectual from the year 1649, as to the horse and kine's grass, but only as to the manse. It was answered, That was but a mistake of the draught of the act of Parliament, there being no reason wherefore it should be drawn back as to manses more than the rest; but it was the meaning of the act of Parliament, to revive the former act of Parliament in all points. It was answered, That the meaning of acts of Parliament may not be extended contrary to the words, neither can any thing be supplied that is omitted in a statutory act.

The Lords found no recourse upon the distress arising from the act of Parliament 1661, and that the drawing back thereof being expressly as to manses, which is adjected as a limitation, could not be extended to the Minister's grass, which is statuted in a different way in this than in the act of Parliament 1649: From this the heritors are only to pay £20 of money, and in the former, lands were only to be designed; therefore found, that the distress being by a supervenient law, the warrandice did not reach thereto.

Stair, v. 1. p. 472.