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Scottish Court of Session Decisions >>
Bonnar v Lyon. [1685] Mor 9099 (20 February 1685)
URL: http://www.bailii.org/scot/cases/ScotCS/1685/Mor2209099-050.html Cite as:
[1685] Mor 9099
Subject_1 MINOR NON TENETUR, &c. Subject_2 SECT. III.
No privilege where the process is founded upon the predecessor's deed. - Nor where action was commenced against the defunct. - Nor where the Minor is the first provoker.
Bonnar v. Lyon
Date: 20 February 1685 Case No. No 50.
A person having sold lands, the brocard cannot save his heir, a minor, from being liable for warrandice upon eviction.
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Bonnar of Kinnettles having bought a parcel of kirk-lands from Lyon of Bridgeton, with absolute warrandice from all perils and inconveniencies whatsoever, and having likewise certain lands disponed to him, in warrandice of these lands; the principal lands being evicted by a designation for a minister's glebe, Bonnar pursues an action of recourse against the warrandice lands. And it being alleged for Lyon of Bridgeton, That minor non tenetur placitare; 2do, Although he were major, yet the lands principally disponed being kirk-lands, which of their own nature are liable to be designed, the clause of warrandice cannot be thereto extended, warrandice being only in relation to the right; and this being inherent to the nature of the lands, and not any defect of the right, he could have no recourse: The Lords found, that the clause of warrandice, being an absolute warrandice, against all perils and inconveniencies whatsoever as law will, and that this eviction not having proceeded from any supervenient law, but according to the law standing the time of the disposition, they repelled the defence of minor non tenebatur placitare, and also the other defence foresaid, and they sustained the action of recourse against the warrandice lands.
Fol. Dic. v. 1. p. 589. P. Falconer, No 51. p. 28.*** Harcarse reports this case:
One having disponed kirk-lands with absolute warrandice against all evictions, perils, dangers and inconveniencies, and there being three acres thereof afterwards designed for a glebe, the buyer raised a declarator of eviction against the disponer's heir, who was minor.
Alleged for the defender; That minor non tenetur placitare, this process having the effect of a reduction.
