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In an action of warrandice pursued by the Lord Sanquhar against William Crichton of Ryhill, the Lords assoilzied Ryhill, because, by the contract he was only obliged to transfer all tacks and rights which he had of the patronage of Sanquhar, without any clause of warrandice; and albeit it was answered, that the contract was mutual, and contained onerous causes, and that since the contract in anno 1607, William Crichton for implement of the special assignation to a tack containing a life-rent, and 19 years; yet the Lords would grant no warrandice, the tack not being reduced upon the said William Crichton's death.
Kerse MS. f. 200.Haddington reports this case:
By contract passed betwixt my Lord Sanquhar on the one part, and Barbara Carmichael, relict of the tutor of Sanquhar for herself, and taking burden upon her for William Crichton her eldest son, my Lord Sanquhar having discharged her and her son of all action competent by him against them for her tutor accounts; and having set them a tack of the lands of Cocksfute, and they having assigned, transferred, and disponed to him all right, title, tack, and possession, which they had or could pretend to the teinds of Sanquhar; the said Lord pursued William Crichton of Ryhill to warrant to him the tack of the teinds of Sanquhar set to him by Blackwood, Parson of Sanquhar, and disponed to the said Lord by the said contract. It was excepted by William Crichton, that he could not be obliged to warrant the said tack, because he had not subscribed the contract. It was replied, That his mother took burden for him; likeas, since his perfect age in the year of God 1607, he had homologated the said contract by making a particular assignation of all tacks, right, and title, which he had to the said teinds in favour of the said Lord, which assignation was relative to the said contract, and made in respect of the same. It was answered, That neither the contract nor assignation bound the defender to any warrandice, and when it was alleged that the contract was made for causes onerous, and so behoved to infer warrandice, the said William alleged, that the said Lord had received greater benefit than he had given to them by the said contract; and therefore the Lords found, that the said William having made no assignation to this particular tack, but only generally to all tacks, rights, and possession which he could pretend to the said teinds, that he had done no deed contrary to the assignation; but they found, that he should nowise warrant the tack, because he was not bound thereto by the contract, and that the tack was not reduced by any deed of his, but because he was deprived before the date thereof; and likeas, my Lord Sanquhar had bruiked the teinds 20 years by virtue thereof, because the tack was only reduced a tempore litis intentatæ; and therefore the Lords assoilzied from the warrandice.
