Found that a purchaser could not retain any part of the price upon alleged defects in the progress, in respect the lands had been disponed with warrandice, and a 40 years progress was delivered, where no incumbrances appeared.
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George Paton having bought the lands of Grandhome, Dansie, and others, from Sir Robert Gordon of Gordonstoun, and having given bond for 1800 merks as the remainder of the price, whereupon Paton being charged, he suspended upon this reason, That Gordonstoun having disponed to him the lands, with absolute warrandice, yet, notwithstanding, the heritors, and possessors of Barnfield, having a servitude and moss-live upon the moss of Danstoun, from Gordonstoun's author, which will in a short time exhaust the moss, is a prejudice to the suspender's tenants of these lands, a moss being of great value in that country, without which the tenants cannot labour the land; and the moss is liable to serve both the suspender's tenants, and the heritor's, who has that servitude upon the moss; and therefore the suspender ought to have retention of this sum, with the damage and prejudice that he sustained by that moss-live: As also the charger has not delivered to him a sufficient progress of the rights of the lands, which at least ought to have been for the space of 40 years. Answered, That albeit the charger did dispone the lands with the muir and moss belonging thereto, which absolute warrandice, that can import no more but to warrant the property of the lands, and the mosses, and muirs, as they had been possessed by the charger for 40 years before; so that this tollerance and moss-live being granted many years before, it must be understood that the suspender bought the lands with the burden of that servitude; as in the case of servitude off acqueduct, highways, and passages through the ground, which albeit they will be oft-times of great prejudice to the heritor, yet, when a man sells the lands, he is not obliged to warrant against these servitudes, especially where the parties having right to the same are in possession the time of the selling of the lands; seeing it cannot be understood that he sold the lands upon any other condition but as he possessed the same himself; and the suspender cannot retain the sum upon that account, of the want of a sufficient progress, seeing he is not distressed, nor any part of the lands evicted for want of a progress; and he having relied upon the absolute warrandice, which sufficiently secures him, be cannot retain the sum; but when he shall be distressed, or any part of the lands evicted, the charger shall then secure him. The Lords found the servitude did not import a contravention of the warrandice, and that the superior had no interest to retain the price upon any alleged defect in the progress, in respect the lands were disponed with warrandice; and that the 40 years progress, given to the suspender, was sufficient till the contrary appear, seeing there was no eviction nor distress.
