May warrandice lands be burdened to the prejudice of the warrandice?
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Umquhile Robert Robertson infefts John M'Duff in an annual-rent of £80, to be uplifted out of his lands of Belligallan, whereto Fleming is constituted assignee by M'Duff, who both desire the ground of the saids land to be poinded therefore. And another Robertson compearing, and alleging, that he was infeft in the lands of Leadgreen as principal, and these lands libelled in special warrandice thereof, and that long before the pursuer's right, and from the same author; likewise after the said infeftment, their said common author and this defender, before the pursuer's right, transacted also together, that the disposer should retain the principal lands, and the defender, the warrandice lands, and either of them should rest satisfied therewith; conform whereto the defender has ever bruiked the warrandice lands these 14 or 15 years bypast, and the author the principal, and so the pursuer cannot seek, poinding of these lands libelled; the Lords repelled this alleagance; for they found, that the defender's infeftment of the land in warrandice, could be no impediment to the common author to give, nor to the pursuer to receive an infeftment out of the warrandice lands; which infeftment, the Lords found effectual, to burden the said warrandice land, notwithstanding of the defender's infeftment thereof, granted to him in warrandice of the principal lands disponed, ay and while he were legally distressed in the said principal lands disponed; and found, that the transaction, (specially being alleged to be verbal, and not offered to be proved to have been by writ) was not impediment to the pursuer, to bruik validly the right of the said annual-rent out of the lands foresaid, disponed in warrandice, nor yet to the excipient, to have recourse to the principal lands disponed to him, notwithstanding of the alleged transaction.
