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Mr. Walter Moubray having sold to umquhile Alexander Otterburn the lands of Whitelaw, and in warrandice thereof having infeft him in a tenement in Edinburgh, the principal lands being evicted by recognition; Thomas Maxwell, as assignee constituted by the relict and heirs of the said umquhile Alexander Otterburn, pursued the possessors of the said tenement to pay him the mails and duties of the same, as heritor thereof, in respect of the eviction of the principal. It was excepted, that the pursuer could have no right to the mails and duties of the tenement disponed to him in warrandice, because if any eviction was of the principal, it was in default of the said umquhile Alexander Otterburn, because the sasine taken by himself before he had obtained the King's confirmation, was the cause of the recognition, and so the annailzier was not obliged to warrant the buyer from the inconveniencies proceeding of the buyer's own fact and fault. It was answered, the annailzier knowing his lands to be ward, and binding himself duly and sufficiently to infeft the buyer, he should have given him a charter, and purchased him infeft by the superior before any sasine taken. The Lords considering the contract of alienation, whereby Moubray was obliged to infeft Alexander Otterburn in Whitelaw, as freely as he held the same, either by charter and sasine following thereupon, or upon resignation, that the buyer was obliged to purchase the superior's consent, and because he took sasine before he got the superior's consent, the failzie proceeded upon his own default; and therefore they found the exception relevant to elide the warrandice.
