Warrandice from fact and deed of the cedent, secures not from falsehood, to which the cedent was not accessory.
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Umquhile Janet M'Math having arrested a sum in the hands of Tyrie of Drumkilbo for satisfaction of a bond due to her by Kilspindie as principal, and the Lord Oliphant and others as cautioners, she was excluded by an assignation to the same debt granted by Kilspindie, intimated by a charge of horning before her arrestment; but thereafter having improved that assignation as false, Dick of Grange her son insisted against Sir Lawrence Oliphant as he who had apprised Drumkilbo's estate upon the false assignation, and thereby did enjoy the profits or price thereof in prejudice of the legal diligence by arrestment, to make payment thereof to the pursuer; and also against Blair of Gleschune, to whom Sir Lawrence Oliphant had disponed his apprising; in which pursuit Sir Lawrence was found liable in quantum lucratus, either by the profits of the land, or getting more for his right than he gave to his author; whereupon he deponed, that he disponed his right to Blair of Gleschune, who had married Drumkilbo's daughter, and that as a part of the bargain he had taken bond from Blair to relieve the Lord Oliphant of that bond, in which he was cautioner for Kilspindie to Janet M'Math; which bond of relief being adjudged by Grange as representing the said Janet his mother from the Lord Oliphant, he doth now insist against Blair for payment of the foresaid bond due to his mother by Drumkilbo. The defender alleged, 1mo, That the bond of relief could take no effect, because the Lord Oliphant was not distressed; 2do, Because the true cause of granting the bond of relief was the right disponed by Sir Lawrence Oliphant to Blair, which now being found null, as proceeding on a false assignation, the bond of relief cadit in non causam. It was answered, That the Lord Oliphant was distressed by horning. And as to the second allegeance, it was answered, that the cause of the bond of relief was the disposition by Sir Lawrence Oliphant, which bears expressly warrandice from Sir Lawrence's fact and deed allanerly, and therefore the right was taken talis qualis Sir Lawrence had it upon Blair's hazard, so that except by Sir Lawrence's fact, the right for which the bond of relief was granted, was found null, the bond cannot fall ob non causam. It was replied, That the warrandice from fact and deed doth import quod debitum subest, and that the right disponed is valid in itself, though it may be excluded by a better right; and therefore if a bond were assigned with warrandice from fact and deed, if the said bond were improved, or null for want of solemnities, the sum paid for the assignation would be recovered. It was duplied, That warrandice from fact and deed allanerly doth import a bargain of hazard, and therefore can give no recourse or warrandice, but only upon the fact and deed of the cedent, and so though the right assigned was found false or null without the author's fact or fault, there can be no recourse against him for repetition of the price, which is further cleared from the common custom and stile of assignations, and dispositions of apprisings, or other securities of money, in which this clause of warrandice is ordinary, that the debt is truly due and resting, and that there is no deed done by the author that may make the security ineffectual, in which case if the debt was not found due, either by falsehood or nullity, it would infer warrandice or repetition by virtue of that clause; but otherwise there can be neither warrandice nor repetition either upon falsehood or nullity, or preference of a better right, unless there were found a fact or fault of the author by which the right granted by him was made ineffectual.
The Lords found, that the disposition by Sir Laurence, being but warrandice from his fact and deed, Blair had accepted the same upon all other hazards, except Sir Laurence's fact and deed; and that the falsehood of the assignation made use of by Sir Laurence's author, whereunto he was not accessory, could neither make him liable for the warrandice, or the bond of relief fall as incidens in non causam, seeing the cause was the disposition, with the foresaid hazard.
