Found that absolute warrandice in the conveyance of an apprising, did only extend to the formality of the diligence, and reality of the debt.
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Hamilton of Silvertounhill having disponed to James Bowie certain lands, whereto he had right by comprising, and the said James being removed at the instance of a wadsetter, and having pursued upon the warrandice contained in the disposition; it was alleged by Silvertounhill, that though the disposition did bear absolute warrandice, yet by a margin subscribed, it was restricted to warrant only the formality of the comprising, and the truth of the debt, and the executions. It was answered, That the warrandice being absolute in the body of the disposition, was indeed qualified by the margin, that it should only be extended to the warrandice of the lands, in so far as concerns the apprising and sums therein mentioned, (which are the words of the margin); and that the said warrandice imports that the disponer should not warrant simply, but as to the sums contained in the comprising; so that in case of eviction Silvertounhill should only refund the same; and the pursuer was content to restrict the warrandice to the sums paid by him. It was urged, that there being three kinds of warrandice, viz. Either absolute; only that the comprising was formal, and the debt just; or a restricted warrandice to refund the price in case of eviction; the last was medium inter extrema, and most equitable; and in obscuris magis æqua interpretatio est contra disponentem facienda, qui potuit legem apertius dicere; and if it had been intended, that he should warrant only the formality, and validity of the comprising, and reality of the debt, it had been so expressed.
Yet the Lords, by plurality of voices, found, that the warrandice should be interpreted, to warrant only the validity of the comprising, and the reality of the debt, that being the most ordinary in rights of comprising.
