Subject_2 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.
Sandilands of counston v. The Earl of Hadington
1672.
January16, and
June20.
Click here to view a pdf copy of this documet : PDF Copy
January 16. It was this day debated, whether a man having sold lands with absolute warrandice, and that they were free of all incumbrances and inconveniences whatsoever; the buyer afterwards finds they owe a servitude of thirlage, pasturage, or the like, to his neighbour's mill or lands; the question is, if he will get relief of the seller, upon the clause of absolute warrandice, because of this servitude or burden.
Advocates' MS. No. 299, folio 124.
June 20. In this action came to be debated that question marked by me supra at No. 299. The Earl dispones some lands to this defender, with absolute warrandice from all wards, reliefs, non-entries, recognitions, &c. and from all dangers, burdens, and inconvenients whatsoever, as well not named as named, &c. as also he dispones the lands cum molendinis et multuris. Before the disposition, there is a bond of thirlage of thir lands given by the former heritor to another man's milne. Couston finding so considerable a servitude and burden upon his lands, pursues the seller upon the warrandice for relieving him thereof; and alleges, that where he had bought these lands at eighteen years purchase, he would not have given fifteen if he had known them to be affected with such a burden; that it would put us all to immeasurable trouble, if they should not sustain prior thirlage to be a contravention of the warrandice; that the general clause, of all other burdens should then have no signification; and that thirlage, pasturage, and all other things that can any ways make land of less value, must hereafter be specially inserted and warranted against. It may be as well said that a prior infeftment of annualrent granted by the disponer falls not under the warrandice, seeing it is but a servitude no more than thirlage. Vide omnino l. 75 D. de Evictionibus, ibique DD.
The Lords found that a man selling lands with absolute warrandice did not thereby oblige himself that the lands were free of astriction; and therefore found a constitution of a thirlage by the disponer, prior to his disponing, no contravention of his absolute warrandice.
My Lord Chancellor carried it in behalf of his nephew; but my Lord President reclaimed exceedingly, and protested it might not be a preparative for other decisions in time coming.
Vide Joan. Superioris proæmium ad T. de Servit. in fine cap. Vide leges 169 and 189 D. de verborum significations, ibique Alciatum et Wissembachium.
