[1668] Mor 16589
Subject_1 WARRANDICE.
Date: Colquhoun and M'Quair
v.
Stuart of Barscub
1 July 1668
Case No.No. 44.
Warrandice against the casualties of superiority.
Click here to view a pdf copy of this documet : PDF Copy
The Laird of Barscub having feued certain lands to Colquhoun and M'Quair, to be holden of himself; in the contract of alienation there is a special clause, that because the lands are holden ward of the Duke of Lenox, therefore Barscub is obliged to relieve these feus of any ward that should fall in time coming. Thereafter Barscub dispones the superiority of these lands, and by the death of his singular successor, his heir falls in ward; whereupon sentence was obtained against the feuers for the ward duties, and the avail of the marriage, and they now pursue relief against Barscub's heir, upon the clause of warrandice above-written. The defender alleged, that the libel was nowise relevant, to infer warrandice against him, upon the said clause, because the meaning thereof can only be, that he as superior, and so long as he remained superior, shall relieve the feuers, which ceases, he being now denuded of the superiority; otherwise it behoved to have imported, that he should never sell the superiority without the vassal's consent,
which no law doth require; or if the lands had been apprised from him, he could not be liable for the ward of the appriser's heir, which is cleared by the ordinary custom, there being nothing more frequent in charters, than clauses of absolute warrandice; and yet none were ever overtaken thereby, after they ceased to be superiors. The pursuers answered, that their libel was most relevant, because this being an obligation, conceived in their favours by Barscub, not qualified as superior, no deed of Barscub's, without their consent, can take it from them, unless Barscub, when he sold the superiority, had taken the new superior obliged, to receive the vassals with the same warrandice; but now the new superior, not being obliged by this personal clause, Barscub the old superior, must remain obliged, especially in a clause of this nature, which is expressed for all wards to come. The Lords repelled the defence, and sustained the libel, and found the superior (albeit denuded) liable for warrandice.
The electronic version of the text was provided by the Scottish Council of Law Reporting