Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION reported by SIR ROBERT SPOTISWOODE OF PENTLAND.
Subject_2 Such of the following Decision as are of a Date prior to about the year 1620, must have been taken by Spotiswoode from some of the more early Reporters. The Cases which immediately follow have no Date affixed to them by Spotiswoode.

Dunipace
v.
Lord Ochiltree

Date: 30 July 1565

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In an action of warrandice moved by Dunipace against my Lord Ochiltree, for warranting to him the lands of Sethes, sold by the defender's father to Mr David Spence, minister of Flisk, who had resigned the same in the king's hands for infeftment of the same to be given to the pursuer's father;—the pursuer, to verify his allegeance, produced a charter, given by the defender's father to Mr David Spence, but had no sasine to show thereupon. Alleged, That a bare charter, though it was sufficient to give a day to call a warrant, and would also give action to compel the giver to give a sasine, yet it was not sufficient to obtain warrandice, because it was not plena venditio, nulla sasina et traditione subsequuta. Answered, That emptio et venditio solo consensu perficiuntur, et talis emptio parit actionem de evictione; and so the buying and selling, being verified by the charter, warrandice behoved to follow, especially an obligation of warrandice being contained in the charter. The Lords found that the defender was not subject in warrandice by virtue of that charter, whereupon there was no sasine produced; because, the naked charter did not transfer dominium, et sic non erat perfectus contractus; though it appeared, by Mr David's resignation and Dunipace's (father and son,) long possession following, that there was a sasine given. Yet, because it was not produced, the allegeance was sustained.

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