Scottish Court of Session Decisions

Subject_1 MUTUAL CONTRACT.
Subject_2 SECT. VIII.

Incumbrances affecting the Subject, transacted by the Disponee, cannot be extended against the Disponer, bound in Warrandice, further than to pay the transacted Sum.

Helen Ferry and Dr Beton of Tarvet
v.
Paterson of Dinmuir

Date: 16 June 1699
Case No. No 83.

A person granted two dispositions of the same propetty. The one disponee purchased the right of the other. Found to have done so tanquam quilibet, and entitled to insist upon the or .

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Thomas Ferry buys seven acres of land beside Cupar, from Dinmuir's grandfather, and by the disposition he is obliged to infeft Thomas by the superior, which was never done, but the same acres were sold over again to Tarvet, who is infeft, and Helen Ferry, heir to the said Thomas, dispossessed. She afterwards assigns her right to Beton of Tarvet, who pursues Dinmuir on the passive titles, as representing his grandfather who disponed to Ferry, for refunding L. 1000 Scots as the price paid by her father, with the annualrent thereof from the time she was dispossessed. Alleged, This pursuit being on the matter for contravention of the warrandice of the first disposition, by granting a second and the second purchaser having acquired it, he can claim no more than what he paid for it; for the Lords have always restricted these pursuits to what was truly paid for purging the incumbrance, and never extended them to the full value of the right warranted, as is marked by Durie, 1st July 1634, Glendinning contra the Laird of Barnbarroch, No 81. p. 9225; 26th January 1669, Boyle contra Wilkie, voce Warrandice, &c. and the defender is willing to refund whatever Tarvet has given to the said Helen for her claim, but he must not seek it in tota latitudine of her right. Answered, He is not pursuing on the warrandice, but as assignee et tanquam quilibet; and as she would make him liable for the whole, as having incurred crimen stellionatus, by his grandfather's making double dispositions of the same land, so may he, especially seeing he did not look upon it as an incumbrance that could ever affect or distress his lands; for it was never completed by infeftment, but stood in nudis finibus dispositionis et personalis juris, and so could never compete with him who was infeft, though on the posterior disposition. The Lords considered that purchasers acquiring in rights affecting their lands, could never extend them beyond the price they cost them; yet, in this case, the said Helen's right could not be looked on as an incumbrance, seeing she could never distress or disturb Tarvet's possession; therefore the Lords repelled the defence, and found he might crave repetition of the price paid, and its annualrents; whereas, if it had been a probable ground of eviction or distress, the Lords inclined to think his purchasing it would have restricted him to what he truly paid; otherwise all such pursuits in time coming would be either in the cedent's name, or as assignee to the fuller action of repetition, and would forbear that action of warrandice competent to them as less profitable, which would evacuate that just ground of law restricting them to what they gave for the incumbrance purged; and the double alienations also moved the Lords to decern for the whole.

Fol. Dic. v. 1. p. 601. Fountainhall, v. 2. p. 52.