Subject_2 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.
Murdock v. Sir Andrew Dick
Date: 7 July 1671
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Sir Andrew as administrator of the law to his son William Dick, sells a tenement of land to one Forester, and he to Murdoch. Sir A. is obliged to warrant this right at all hands, and to procure his son's ratification at his majority. Sir A. and his son altogether disagreeing, he was so far from procuring his son's consent, that his said son has intented action of reduction of this alienation made by his father in his nonage to his prejudice. Murdoch finding his right thus drawn under question, intents a summons against Sir A. for warranting him, and for obtaining his son's ratification.
Against which it was alleged,—That Sir A. could never be decerned to warrant till there were a distress; but ita est there is no distress condescended upon, save only a naked citation given by Sir A.'s own son to this pursuer for reduction of his right; which, till decreet follow thereon, can never be the ground of an action for warrandice; because nondum constat whether he will evict or not, or how much, whether it will be in whole or in part; and till the quantum be known, there can be no warrandice decerned, because that must be proportionate to the eviction.
To the next, anent the obtaining his son's consent; that is factum speciale et quidem alienum, and in the condition he is now stated with his son, altogether unprestable by him; so that in law non tam præcise tenetur for performance; but all that can be sought of him is damnum et interesse, sustained by them through his not obtaining his son's ratification, which how soon as they liquidate it, he is content to pay.
This was found relevant. And because my Lord Craigie inclined to sustain this action, at least pro declaratoria juris, in case Mr. Dick prevailed against Murdoch in his reduction, it was urged, that such a sentence being general would be altogether useless and insignificant; and that warrandice upon eviction being actus legitimus, it neither admitted diem nor conditionem. And caution being craved of Sir Andrew, it was judged by some very unreasonable till the distress were manifest.
