Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR PETER WEDDERBURN, LORD GOSFORD.

Scott, Bailie of Aberdeen,
v.
Thomas Boyes

Date: 19 July 1670

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Bailie Scott being heritor of a tenement in Aberdeen, whereof Margaret Forbes was liferenter; the said Margaret did assign her liferent to Robert Smith, bearing in satisfaction of 400 merks paid to her; as likewise upon a backbond to repone her to the possession, how soon the said Robert should be satisfied of the said sum: Which assignation being transferred to Thomas Boyes, the said Thomas dispones his right in favours of Scott the heritor, who did pay him the said 400 merks, and 70 merks beside: Which translation Boyes did oblige himself to warrant from his own, and the facts and deeds of Smith the cedent; as likewise became obliged to refund the said 400 merks, at the first term after Scott should be distressed. Thereafter, Margaret Forbes, the liferenter, having distressed Scott, and recovered decreet against him, for three years' possession, Scott did pursue Boyes for warrandice of his translation, upon these two grounds:—First, That, in the translation made by Boyes, he was obliged for Smith, his author's fact and deed: but so it is, that the ground of his distress was a backbond granted by Smith, which was not mentioned in the translation made by Boyes to Scott, but was concealed.

The Lords did assoilyie from that reason: because, albeit there had been no backbond, the assignation made by the liferenter, and transferred by the defender to the pursuer, bearing only in satisfaction of 400 merks, was per se sufficient, without a back-bond, to qualify Scott's right; so that he ought to have looked upon it as that, upon satisfaction of 400 merks, by intromission or otherwise, it might be extinguished, whether there had been a back-bond granted or not. The second reason of the pursuit was,—That Scott was only obliged to refund the 470 merks at the first term after distress; and therefore ought to refund to him his three years' possession, which he was forced to pay to the liferenter; especially, he having advanced a greater sum than that which was paid to the liferenter, or was contained in Boyes's right.

The Lords did likewise assoilyie, notwithstanding of that ground; in respect that Boyes had expressly transferred such a right only, as he himself had from Smith, which was only taxative, and not absolute: And found, That Scott being secured for repayment in case of distress, that the warrandice could not be interpreted to extend as to the preceding years of his possession, it being against reason and the meaning of parties that he might possess the whole years that the liferenter lived, and yet repeat the sums of money paid by him. But they found that Scott's possession, for the space of three years, should diminish yearly so much of the principal sum; and for the superplus, they did decern the defender to refund the same, with the ordinary annualrents.

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