Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Sinclair of Freswick and William Maxwell v. Mr John Mowat
Date: 12 June 1696
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There being a petition given in by Sinclair of Freswick, and William Maxwell, macer, against Mr John Mowat, advocate, the Lords demurred on this point,—Where a comprising is disponed with warrandice against the disponer's and his author's facts and deeds, excepting the deeds of two persons named, whom they supposed to be the party they heard had granted some writ thereanent, but now, after trial, it is found to have been done by another; whether the exception ought not, in justice and equity, to be extended also to this contravention, though not mentioned, seeing it has been so meaned amongst the parties, that at least some deed should be excepted from the warrandice; and these, by mistake condescended on in the right to the apprising, having done nothing, it must be presumed that this was what the parties designed. But, if any deed against the warrandice can be instanced in those named in the disposition and conveyance, then this presumption ceases. Next, it was argued,— This distress extended no farther than to the purging the acquirer's damage and true interest, and refunding the sum they paid for the comprising, and not to the whole extent of the sums disponed and therein contained; for which was cited, l. 13, D. de Evict. I. 18, et 24, C. eod. tit.; and Stair, 26th January 1669, Boyl against Wilkie.
The Lords remitted thir points to be farther heard by the Ordinary.
