It is necessary to give a progress in every respect complete. The buyer is not obliged to accept of absolute warrandice to supply a defective title.
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In a suspension, at the instance of a person who had bought lands, upon that reason, that the seller who charged for the price was obliged by the contract to give him a perfect progress, and that the progress exhibited to him was defective, in so far as the lands did hold of the bishop, and the original right was not produced, but only a charter of confirmation in anno 1611; and the charter confirmed was not produced; and the progress, since the charter of confirmation, was but late, and some of the charters had no sasine following upon the same, and some sasines wanted the warrants of charters and precepts; and albeit it was alleged, That the charters would be found registered in the bishop's register, that defect was not supplied thereby, seeing the bishop's register was not authentic, and ought to have no other respect than a register of any other lord or baron, of the writs granted by them;
The Lords found, That, though much may be said upon the progress foresaid, to defend against any person that will pretend right to the lands, and to found prescription upon them; a buyer nevertheless was not obliged to accept and acquiesce to the same as a sufficient progress, seeing the buyer ought to have a right; and prescription, with 40 years possession, doth not amount to a right, and there may be replies upon interruption; and, at the best, prescription is not a right, but exceptio temporis.
But the Lords did allow to the charger, a time for making out a better progress; and found, That the suspender could not be forced to acquiesce in absolute warrandice, which was offered in supplement of the progress, in respect the same is only the ground of a personal action, and may become ineffectual, if the person, obliged to warrant, should become insolvent. In præsentia.
Act. Falconer.Alt. Stewart, &c.Clerk, Gibson.
Fol. Dic. v. 2. p. 358. Dirleton, No 356. p. 170.
