Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.
Patrick Smith of Bracko v. Rosse of Balnagoun
Date: 18 February 1672
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This defender's goodsire having wadset some lands to umquhile Sir John Sinclar of Stevinson, upon the reversion of 25,000 merks, he thereafter disponed the reversion of the wadset lands to Sir John Sinclair of Dunnibaith, (from whose heirs of line Bracko derives right,) with absolute warrandice. After the disponing of which reversion, old Balnagoun dispones the same wadset lands irredeemably to Mr. Thomas M'Keinzie, with all reversions, discharging and renouncing the same. This seeming to be a clear contravention of the warrandice, being doublealienations of the same thing, Bracko has intented summons against Balnagoun, as representing his goodsire on the passive titles, for recourse of warrandice, and for payment of the sums paid by Dunybaith for the said reversion, &c.
Against which pursuit it was alleged, That there was no breach of the warrandice incurred, (always denying the passive titles,) because the disposition of the reversion made by Balnagoun to Dunybaith was not a simple and absolute disposition, but clogged with a back-bond, whereby Dunybaith obliged himself to relieve (redeem) that wadset of Steinson's, and then to grant a reversion in favours of Balnagoun, for redemption of the same lands, upon payment of 36,000 merks: and so Dunybaith's own right by the said backbond being only a redeemable right, Balnagoun might very safely, without incurring any warrandice, dispone the lands irredeemably to Mr. Thomas M'Keinzie; wherein Dunybaith's backbond and reversion is not only expressly narrated, but M'Kenzie is assigned thereto. Which backbond, Dunybaith thereafter viis et modis destroyed. Whereon being pursued, and the tenor of it referred to his oath, being conscious to himself of the trust, he would not compear, and so was holden as confest thereon.
Then Bracko insisted for the sum of 11,000 merks, which was farther contained in Dunybaith's backbond than was in Stevinson's wadset, to the reversion whereof he was assigned: Stevinson's wadset bearing only 25,000 merks, and Dunybaith's retrocession or backbond bearing 36,000 merks: together with the annualrent of the said 11,000 merks since the year 1643. To this it was answered, That Dunybaith, by his backbond, being obliged first to redeem Stevinson's wadset and then to return the lands back to Balnagoun upon his payment of 36,000 merks, unless he has redeemed Stevenson's wadset, or can produce the same, that from it it may be apparent what sums were truly due by (on) that wadset, he could claim nothing; and if the haill 36,000 merks be found due by that wadset, then he would have right to nothing: till which be produced the superplus cannot be known nor the damage liquidated, in case warrandice were inferred; and the disposition to Mr. Thomas M'Keinzie, bearing Stevinson's wadset to be for 25,000 merks, is not sufficient, the same only being narratory; et non creditur referenti nisi constet de relato. To this it was replied, That Dunybaith would have redeemed Stevinson's wadset had he not been excluded by the irredeemable disposition of the lands, and discharge of the reversion, given by old Balnagoun to Mr. Thomas M'Keinzie, which Mr. Thomas redeemed the lands from Stevinson and those who came in his right. Triplied, They redeemed not the same by order of law, but by voluntary transactions with the party having right, and so there is no warrandice inferred, because his right would ever have been preferred to M'Keinzie's, (suppose we were not in the case of a backbond, as we are;) which was no ground in law whereon Dunybaith's right was either weakened or prejudged; so that his not redemption was in his own default, no action being ever moved against him at M'Keinzie's instance for taking away his right, nor was he disturbed therein by order of law.
The Lords found the posterior alienation made by old Balnagoun to M'Keinzie was not a sufficient foundation for an action of contravention of warrandice, unless by a preceding sentence Bracko could show a distress declared, and that he was legally debarred.*
Against the which interlocutor the pursuer reclaimed, and produced a clear practique in the contrary, marked both by Dury and Hadington on the 6th of March 1623, Robert Hamilton of Newhouse against Mr. David Sharp, parson of Kïlbryde, where a man having set a tack of teinds, and obliging himself not to contravene, yet setting a second tack to another, it is in the first tacksman's option either to pursue his author for contravening his bond, or the second tacksman for spuilyie; and the allegeance that he was not debarred by law, and that there was no sentence finding him distressed, that it was his own fault, seeing notwithstanding of any posterior tacks he might have possessed, (all which is the very triply made for this defender, and which by interlocutor was found relevant,) is repelled as irrelevant.
The 105th act of Parliament in 1540 is very severe against all such as make double alienations, and declares them infamous and punishable in their persons and goods at the King's will: but I suppose quoad the extremity of it, it is gone in desuetude. Vide omnino legem 3 C. de evictionibus; and Perezius on that title, No. 19.
Advocates' MS. No. 327, folio 130
* But in Stair's promted Decosons, at this place, the Lords altered this, sustained it as a suffcient distress. See it there.
