Incumbrances affecting the Subject, transacted by the Disponee, cannot be extended against the Disponer, bound in Warrandice, further than to pay the transacted Sum.
Mr Rob Glendinning v. L Barnbarroch.
Date: 1 July 1634 Case No. No 80.
A purchaser of land holden ward, taking the seller bound in absolute warrandice, and to obtain the superior's consent; if he purchase the gift of recognition himself, he may pursue for the warrandice, but can only recover what he paid to the superior and his charges.
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Barnbarroch having sold some lands to Glendinning which were holden ward of the Laird of Lauchop, which alienation bore simple warrandice, and particularly from all wards, and to obtain Lauchop's consent; and the said Glendinning having obtained the gift of recognition from Lauchop, and thereupon declarator, thereafter pursues warrandice against Barnbarroch, who alleged, That seeing he was secured by the acquiring of the recognition to himself, all cause of warrandice ceased, seeing he ought also to have intimate to the defender, and required him to have purchased the superior's consent before he took the recognition, which he would have done; and the pursuer answering, That it was as favourable to him to have taken the gift of recognition as to a stranger; likeas, the defender was obliged to purchase the superior's consent betwixt and a day, which has expired many years before he acquired this righ; the Lords repelled the exception and sustained the warrandice, but they retrenched the same to the sums paid to the superior by the pursuer for acquiring of the said recognition, with the expenses made by him since in plea, and prosecuting the same, and no further.
Act. ——.Alt. Gilmor.Clerk, Gibson.
Fol. Dic. v. 1. p. 600. Durie, p. 723.
