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Balnagoun having in the year 1617, granted a disposition of some lands to Sir John Sinclair of Stevenstoun, who by a back-bond, apart to Alexander Ross, trustee for Balnagoun, declared them redeemable upon payment of 25,000 merks at Whitsunday 1629, otherwise to remain irredeemable; the right of the lands same by progress in the person of Andrew Ross of Ginies, in the year 1643. Alexander Ross disponed the reversion, with Balnagoun's consent, to Dunbaith, and took his back-bond, that the reversion should be redeemable for 36,000 merks. In the year 1645, Balnagoun disponed the lands irredeemably to Mr. Alexander M'Kenzie for 50,000 merks; and thereafter disponed the lands again to Dunbaith, upon payment of 14,000 merks, and delivered up to him his former back-bond. Dunbaith finding that Balnagoun had made double alienations, pursued this Balnagoun for warrandice, and for damage and interest.
Alleged for the defender: 1st, It was the obligement of reversion granted by Dunbaith, in anno 1648, that it was disponed to Mr. Alexander M'Kenzie, and the property was disponed to Dunbaith, which are consistent, not being de eodem subjecto; 2do, Dunbaith's right in anno 1643, was prior and preferable to Mr. Alexander's; and Mr. Alexander is not pursuing; 3tio, The defender offers to purge M'Kenzie's right, as was sustained in the act 1672; 4to, The eviction cannot exceed repetition of the 11,000 merks paid without annual-rent or damage because usuræ non debentur nisi ex pacto; and Dunbaith having the right of reversion, might have used an order, and attained possession of the lands, which extended to twenty-five chalders of victual.
Answered for the pursuer: 1st, Here are double alienations, which is punishable by act of Parliament; 2do, The pursuer may either follow out his right, or cedere juris, as was decided —— Sharp against ——. And Mr. Alexander got a right of property, and not a simple assignation to the reversion; 3tio, The defender ought not to be allowed to purge, res not being integra; and were he indulged that favour, he behoved to purge instantly, which is impossible, part of the lands being in the possession of singular successors; 4to, Not only ought the money paid (as being in effect the price of land) to bear annual-rent, but the worth of the lands ought to be considered, there being damnum or lucrum cessans to the pursuer, in so far as the rent of the land exceeds the annual-rent of the money. Again, The pursuer used an order, and consigned the wadset money, which was impeded by a deed of the defender's author, viz. a reduction of Alexander's right to Dunbaith ex capite inhibitionis.
Replied: Nothing in the act of Parliament allows recourse of warrandice upon other terms than before the act, but it irrogates a further punishment upon the seller of the lands; and the decision is but a single one; 2do, The 11,000 merks paid to Alexander Ross was not the price of the land, but of the reversion; for Andrew Ross had the right of the wadset, and by the civil law, interesse certum nunquam excedit duplum pretii in quo inest simplum. Again, The pursuer's order was not legal, and the reduction ex capite inhibitionis was no impediment, but collusive, for not-production of a writ in Dunbaith's hand; besides, the ground of the inhibition was only £40 Scots a year, whereof no eviction ever followed.
The Lords having called Balnagoun, and finding that he could not purge M'Kenzie's right, they decerned for the 11,000 merks paid, and decerned 20,000 merks in name of damage.
