Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 I sat in the Outer-House this week.
Brown of Carsluith v. Maxwell of Cuill
Date: 12 July 1706
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Anne Boyd, relict of Brown of Carsluith, being married to Maxwell of Cuill, in 1660, he acquired a comprising led against the lands of Carsluith, by one Mackgowan: and, his stepson coming to be married, in 1680, to Creighton of Crawfurdston's daughter, Cuill gets in the tocher, and dispones to him Mack-gowan's apprising, principal, annualrents, and expenses, with warrandice from all facts and deeds of his own; but reserves nor excepts not his former intromissions exceeding his wife's jointure-lands, preceding the date of his disposition. Carsluith having raised a process against him, for counting for the superplus rents more than his mother's liferent extended to, Cuill alleged he had, done no fact nor deed in prejudice of his disposition to Carsluith; for he had, neither before nor since, conveyed that apprising to any other, and so had not contravened his warrandice: And none can imagine that one in his right wits would convey a comprising so as to lay a foundation for an action against himself, to restore all he had intromitted with by virtue of that comprising, prior to his disponing it; for that were to make him a loser for the favour he did Carsluith, in disponing to him that comprising to be a title to him for bruiking his lands, and to make him give back, not only what he got for it, but much more; which is against all equity and justice; especially since he never bruiked by it, but only-entered to the possession of the whole, as he found his wife in it.
Answered,—Cuill had clearly contravened the warrandice, because he had uplifted the rents of these years he had assigned to Carsluith; and his discharges to the tenants were produced. For, he having disponed the apprising and haill sums of money therein contained, without any reservation of his intromissions, with warrandice from his facts and deeds, his discharges were a clear fact of his own, and his ascribing it to his wife's right can never infer a bona fides; because, by her contract of marriage, she was restricted to fourteen chalders of victual: And to say, I did not possess the superplus above that fourteen chalders of victual by that apprising, but only by the right I derived from my wife, is the answer which a prado, having no right, gives,—possideo quia possideo, without founding on any title whatsoever except mere possession. Likeas, this apprising was of little use to Carsluith; for, when he came to compete with other cre-ditors-apprisers, they were preferred: so that he was obliged to transact with them, and purchase in their right, for securing himself in the lands.
The Lords found Cuill had contravened the warrandice by uplifting the surplus rents above his wife's jointure, and found him accountable for the same; but allowed him to be further heard, what should be the extent and quota of his counting; for, 1mo, He alleged, that no intromissions before his acquiring the said apprising could enter in cornpulo, but only since; 2do, That, he being overtaken on his warrandice, so uncautiously drawn by the writer's ignorance, and his own inadvertency of not adding an exception and reservation, it can go no farther than the onerous cause of the dispositon; which was little or nothing, not exceeding a thousand merks, the disposition not being express nor specific, but only bearing sums of money in the general; and it cannot be presumed adequate to the value of the apprising disponed, seeing he gives not absolute warrandice, but fact and deed. And Stair, Inst, Page 223, &c. shows, that recourse of warrandice can go no further than to make up their damage by the contravention, and the value of the thing warranted, and the onerous cause of the thing or price given for it, and purge any prejudice they instruct they have incurred by the contravention founded on. And, in equity, Cuill can refund no farther than in quantum he was locupletatus and made benefit by disponing that comprising to Carsluith; and cannot be countable for a vast superintromission, far exceeding the sum transacted for.
