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.

Janet Carruthers and James Maxwell of Barncleugh Her Husband,
v.
John Carruthers of Dormount

Date: 24 July 1706
Case No. No 84.

A wife dispones her estate to her second husband upon his granting back bond to provide her to a liferent of the whole, and their children to the fee of the balf. The husband acquired a former right by his wife to her first husband's father.

The second husband had, before this, been many years in possession by virtue of his own disposition. Found that, by the supervenient right, he could not exclude the only child of the marriage from the benefit of the backbond.

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Susanna Maxwell, daughter of John Maxwell of Colignaw, having disponed her estate to John Carruthers of, Dormount her second husband, upon his granting a back-bond to provide and secure her in the liferent of the whole, and the children to be procreate betwixt them in the fee of the equal half thereof; Janet Carruthers, only child of the marriage, and James Maxwell of Barncleugh, her present husband, pursued Dormount for implement of the back-bond.

Alleged for the defender; That he could not be obliged to implement, in regard the right made to him by his wife was ineffectual, she, with consent of her first husband, having formerly disponed the same lands to John Maxwell elder of Castlemilk, her first husband's father, which excluded the right made by her to the defender, and rendered the same altogether ineffectual, which obliged him to buy in Castlemilk's right.

Replied for the pursuer; The defender having entered to the peaceable possession of the lands disponed, and continued long therein by virtue of the right from his wife, he was in mala fide to acquire Castlemilk's right in prejudice of the pursuer, whose right he might have completed and rendered preferable to Castlemilk, by infefting or adjudging; which, by his back-bond, he was bound as trustee for the pursuer to have done; and hath industriously omitted to furnish him with a defence against this pursuit.

Duplied for the defender; It was impossible to make the defender's right from his wife preferable to her prior right in favours of Castlemilk; seeing the pursuer, as heir to her mother, would have been obliged to implement the disposition to Castlemilk, and the inhibition thereon would for ever have excluded the posterior disposition to the defender, whatever diligence had been done to complete it; so that the defender was in optima fide to acquire Castlemilk's right, his own right being reducible ex capite inhibitionis; and necessity has no law. 2do, The main cause of Dormount's obliging himself for one half of the lands disponed to the heirs of the marriage, was his getting the other half to himself; and ita est, the inhibition upon Castlemilk's disposition did wholly evacuate Dormount's own half; therefore the obligement of the back-bond falls ex causa data non secuta, Arg. Decis. December 19. 1684, The Dutchess of Lauderdale contra The Earl, No 42. p. 6379. 3tio, et separatim, The pursuer cannot insist against the defender for her half of the estate, because she may be repelled personali objectione as heir to her mother, who was obliged to warrant Dormount's half from fact and deed; and the one meets the other by compensation. For though regulariter compensation is only in quantitatibus, yet ubi mutuæ obligationes sunt ejusdem speciei (as the obligations for the two equal halfs are) they meet one another; and, where a person is necessitated to buy in a preferable right, which would evict a former right in his person, he who is liable in warrandice of that former right, can never claim the purchased right, without giving what was paid for it, and all expenses.

Duplied for the pursuer; Castlemilk's son, as the mother's heir of line, is liable primo loco to make good her warrandice, and the pursuer being only heir of provision, is liable in warrandice but according to the value of the succession; and not in that till the heir of line be discussed.

The Lords found, That the defender could not make use of the supervenient tight acquired from Castlemilk to exclude the pursuer from the benefit of his back-bond, and that the necessary expenses must come off the whole estate, and not off the pursuer's half only.

Fol. Dic. v. 1. p. 600. Forbes, p. 131.