Church lands, being disponed with absolute warrandice, whether the disponer bound to warrant against designation of a glebe?
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The Lord Blantyre's father having disponed to Harry Elphingstone the kirklands of Calderhall, with absolute warrandice; thereafter in anno 1642, four acres of them were designed to the Minister, and three acres farther in anno 1649, whereupon Harry Elphingstone having pursued a transferring of the disposition against this Lord Blantyre, as heir to his father, he obtained decree,, and charged thereupon; which was suspended upon this reason, that the eviction was not from the defect of Harry Elphingstone's right, but by a supervenient law. The English Judges found the letters orderly proceeded, notwithstanding of the reason. And Blantyre having intented a review, he resumed and enlarged the same reason, There can be no warrandice in such a case, where the lands were taken away from Calderhall, by a designation warranted by act of Parliament; no more than a disponer should warrant lands from public burdens laid on by a statute, nor that a disponer should warrant them from a decreet of buying teinds, or from a schoolmaster's stipend for a school erected after the disposition; and therefore where this eviction doth arise ex natura rei, which the buyer should know, and not ex defectu juris, there can be no warrandice. It was answered, That absolute warrandice importeth security against all inconvenients whatsoever, whereby the thing warranted is taken from the buyer, and made to belong to another, or is burdened with former deeds; and it is not alike, as when public burdens are imposed; for these take not the dominion of the lands from the buyer; nor are they founded upon private deeds made in favours of private persons, but are publica onera, imposed for public use, and for the good of the people, and consequently for the buyer's own good; and yet if any of these burdens be owing the time of the disposition, absolute warrandice will relieve the buyer thereof; sicklike of school-masters' stipends. And as to a decree of buying teinds; esto argumenti gratia it were so as said is and alleged, the reason is, because the buyer cannot pretend prejudice, seeing he by the decreet gets the value and worth of the teinds, according as the price is settled by a general law. Likeas, before the lands were acquired by Calderhall, there was of a very long time an act of Parliament ordaining Kirklands to be liable to the designations of manses and glebes; and the absolute warrandice making no exception thereof, it must carry all hazard redounding to the buyer by the act of Parliament then standing.
The Lords assoilzied from the reason of review as to the four acres of land, in regard the eviction was by no supervenient law. But as to the three acres, in regard the eviction was by a supervenient law in anno 1649, they declared they would hear the parties farther in præsentia.
