Incumbrances affecting the Subject, transacted by the Disponee, cannot be extended against the Disponer, bound in Warrandice, further than to pay the transacted Sum.
Logan of Balvie v. Laird of Luss
Date: 8 March 1632 Case No. No 79.
Found in conformity with the above, that a person who has transacted an incumbrance affecting his lands, has no action against the proprietor bound in warrandice but for the transacted sum.
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In a suspension of charges, executed against Archibald Thomson, who was cautioner to the Laird of Luss, for relieving of the lands of Balvie, of all burden which might affect these lands, the same being sold by Logan of Balvie to the Laird of Luss, and ay and while the payment of the remanent of the price thereof by the Laird of Luss; the said Archibald was cautioner, to the effect foresaid; and the Laird of Luss being distressed, by a sentence, recovered for poinding of the ground for an annualrent, wherein the creditor was infeft out of the said lands by Balvie; and the said Archibald being charged to relieve the said lands of that burden; who suspended, upon this reason, That he ought to relieve him only in so fat as he was distressed truly for the said annualrent, and for no more than he has paid to the annualrenter for his right; and the other answering, That albeit he had acquired that right gratis from the party to whom it was truly addebted, he ought either to be relieved of the whole, for the which the land might be lawfully burdened by that right, or else the party ought to show how he might be freed legally thereof; and it is unjust and unreasonable to restrict the warrandice to that which he paid for that right; for the party might have quitted the same for nought, or for less or more, as they agreed; notwithstanding whereof, the Lords found, That the suspender was only holden to pay for the relief of the said distress, so much as was paid by the charger for the acquiring of the right of the said annualrent, the quantity Whereof was found probable by the charger's own oath; and this was the rather done, because Balvie, for whom Archibald Thomson was cautioner, was a poor aged distressed person, and reduced to great necessity, and therefore the distress and warrandice was so retrenched.
Act. Nicolson and Baird.Alt. Craig.Clerk, Gibson.
Fol. Dic. v. 1. p. 600. Durie, p. 628.
