Prescription of an action of warrandice runs only from eviction.
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The deceast Edward Lord Sanquhar having set a tack of the lands of Glenarie, to umquhile Nicol Crighton, and to his heirs and successors for five years, and after that space, for other five years, and so forth from five years to five years for ever, for payment of a certain duty therein contained, which the said Lord obliged him and his heirs, to warrant to the said Nicol and his heirs, and that they should never be removed therefrom; the Viscount of Air having obtained decreet of removing against Matthew Crighton, being heir to the tacksman, he pursues the Viscount as heir to the Lord, setter of the tack, to warrant the same; and’ he alleging the tack to be prescribed, and so that no action could be granted thereon, there having intervened more than 50 years since the date thereof; and 2dly, alleging, That the tack was null, because it had no time of ish, but was set for ever, and so not of the nature of a tack; both these allegeances were repelled, because the prescription was found could not have place, seeing the pursuer and his predecessors bruiked ever the lands libelled, by virtue thereof, while lately within these two years or thereby, that they were then distressed by the said decreet of removing, since which time the warrandice could only be counted to take beginning to precribe; and sick-like the tack was sustained, to produce warrandice against the heir of the setter, albeit it was set without a term of ish, seeing the heir might not object the same, albeit the singular successor might have opponed the same, which was found not competent to the heir, for the tack was set to the receiver and his heirs for ever, and the setter had thereby obliged him and heirs never to remove the receiver nor his heirs. This cause was called in November 1631, and the parties ordained to be heard upon this point, but they agreed amongst themselves. See Tack.
Act. Stuart.Alt. Nicolson.Clerk, Scot.
Fol. Dic. v. 2. p. 123. Durie, p. 600.
