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Hay of Crimonmogat pursues the Laird of Philorth, as heir to his father, to ratify and warrant the alienation of the lands of ——, made to the said pursuer by his umquhile father, and from his own fact and deed, and from the deed of his heirs. Young Philorth alleged, he would warrant the said bond from any deed done by him since he was heir, or since the contract of alienation made of the said land to the pursuer; but true it is, that the said young Laird, long before the contract, had disponed such right as he had of the said land in favours of another person, and was not able to warrant that deed done by him so long before his father's obligation, whereby he obliged him and his heirs before he became heir. The Lords repelled the allegeance, and ordained him as heir to warrant the said land from any deed done by him quovis tempore, for he had it in his choice to be heir to his father or renounce.
Auchinleck MS. p. 251.*** Durie reports this case:
The deceased old L. of Philorth having disponed certain lands to Hay of Crimonmogat, and in the contract of alienation, having expressly obliged him and his heirs, that he nor they hath done, nor should do no deed prejudicial to that heritable and irredeemable alienation; his eldest son the time of that contract not being contracter, and having disponed a right, which he had in his own person, to these lands, to a third person, divers years before that contract; by the which right the alienation made to Hay, as said is, by the father, was not valiable; and the said son being served heir to his father, and the contract transferred in him as heir, and he charged to infeft him, and to warrant the lands from that deed, done by himself before the said contract, in respect of the said clause, whereby his father obliged him and his heirs, that they had done no deed prejudicial thereto, which the charger alleged he ought to fulfil, seeing he was obliged thereto, by entering heir to his father sensyne; the Lords found, that the foresaid clause of the said contract, whereby the father obliged him and his heirs, to infeft the charger in the said lands, and to warrant the same from all bygone deeds done by them, was effectual to cause the said suspender, in whom the contract was transferred, as heir to him, to give to the charger an infeftment of the said lands, and that the contract was not satisfied by the infeftment given by the father, which infeftment was not valid, in respect of the deed foresaid, done by the son before the contract: From the which deed the Lords found, that this suspender was obliged to warrant the father's alienation, he being now heir, albeit he was neither then contracter, nor could not be then heir to his father, who was living; but he being now heir, it was found, that that clause, whereby the father obliged him and his heirs, that they had done no deed prejudicial, bound the son who was heir since, to warrant from that deed done before the contract, when he was not heir; albeit that was no deed done by the son, but a right made to him of before.
The same decision was done again betwixt the same parties 22d July 1631, the same cause being then called.
Act. Advocatus et Nicolson.Alt. Mowat.Clerk, Gibson.
Durie, p. 529.
