Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR PETER WEDDERBURN, LORD GOSFORD.

Thomas Nairne
v.
Clayhills of Innergowrie

Date: 28 June 1677

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In a suspension, raised at Thomas Nairne's instance, for payment of the price of the lands of Bank, disponed to him by Innergowrie, upon these reasons:—

1st. That, by the disposition, he is obliged to infeft the suspender in his own lands of Innergowrie, in warrandice of the principal lands; and therefore ought to obtain a confirmation of the king, of the base right of the warrandice lands.

2d. Since the disposition of the warrandice lands, he hath granted an infeftment of three hundred merks of a yearly annualrent; which he ought to purge; seeing it may prejudge him of his recourse, in case of distress.

It was answered to the first, That the infeftments of the principal lands being public, and clad with possession, the warrandice lands, as to all posterior rights, is a public right; and there being no obligement in the disposition to confirm the same, the disponer, by our law and practick, is never found liable.

It was answered to the second, That there was no necessity to purge the annualrent, because the lands given in warrandice were triple more worth in rent than the principal lands; and so was more than sufficient to give relief in case of distress.

The Lords did find the letters orderly proceeded for payment of the price of the lands, notwithstanding of both these reasons; because, as to the first, there was no special obligement to obtain a confirmation from the superior; but, in case of forefaulture of the disponer, recognition, or liferent escheat, the suspender might obtain a confirmation himself. Likewise, he was expressly bound to pay the charges of the infeftment of the principal lands; as likewise, there was sufficient for relief, notwithstanding of the annualrent.

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