Warrandice of lands was found not to take effect by a process against the heir of the warrenter, alleging that there was a prior infeftment exclusive of the one warranted.
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Menzies of Castlehill infeft his second wife, and the eldest son of the marriage, in the lands of Sokartoun with warrandice. William Menzies of Raw having right to this infeftment, pursues this Menzies of Castlehill, as heir to his goodsir upon the warrandice, to pay the value of the lands, and the rents thereof 45 years past, upon this ground, that his goodsir before the contract had given an irredeemable infeftment of the lands to one Lockhart, who had possessed the same ever since, and craved an incident for producing of Lockhart's infeftment. The defender alleged no process in this method, but the pursuer ought to have insisted upon the infeftment against the tenants, and if Lockhart had defended them upon his right, he ought to have intimated the plea to the defender, especially in this unfavourable case, which hath lain dormant near 40 years. It was answered, That though that be the ordinary course, yet it is not exclusive of this order, and there was no reason to throw out expenses needlessly in a process that could have no effect.
