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Home of Linthill v Home of Wedderburn. [1695] 4 Brn 263 (00 January 1694)
URL: http://www.bailii.org/scot/cases/ScotCS/1695/Brn040263-0591.html
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Home of Linthill v. Home of Wedderburn
1694 and
1695.
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1694. January 24.—Arbruchel reported Home of Linthill against Home of Wedderburn. It was a recourse upon the absolute warrandice in a disposition of six chalder of teinds, in regard £145 of them was evicted by Mr Beton, minister of Ayton, by a decreet of augmentation of his stipend. Alleged,— That warrandice of teinds could never extend to warrant against ministers; because they stood naturally affected with stipends, and all knew their hazard. Some Lords thought, if they were bought at nine years' purchase, (which is the rate of teinds settled by the Act 1633,) then, in regard of the ease in the price, it was evident he had taken his hazard of all the burdens that afterwards might befal them; but, if he paid a full and adequate price of sixteen or seventeen years' purchase, as lands fell, then he should have regress. But the plurality (abstracting from this inspection,) found, where warrandice was given for teinds, That, in case of supervenient laws, or augmentations to ministers, there could be no recourse, but only if they be evicted by a fact and deed of the disponer, or oh defectum tituli. See Craig de Warrantizatione; and Dury, 27th March 1634, Lady Dumfermlin; and 28th July 1635, Lady Cardrose; and 10th July 1676, Auchentoul. So the only remedy against these notour burdens is to insert them nominatim in the warrandice, and provide specially against them in omnem eventum.
Vol. I. Page 598.
1695. February 12.—Arbruchell reported William Home of Linthill against the Laird of Wedderburn and Beton of Blebo, mentioned 24th January 1694. The Lords had found, That a part of the teinds disponed being evicted by an augmentation of £161 yearly, given to the minister of Ayton, there could be no recourse upon this distress; teind being naturally liable to ministers' stipend, and not liable for warrandice, save either in an express contravention by some fact or deed, or else super defectu tituli. Yet the Lords found, in this case, he might recur on his warrandice; because it was not formally a disposition of teinds, but a pension of six chalders of victual out of these teinds. 2do. He had paid as much for them as if they had been stock; and, if they would retrocess him to the apprising he had disponed, he was content to quit his right to these teinds. 3tio. He had provided himself with real warrandice; and quorsum took he that but to secure himself in all events?
