Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, Reported By REPORTED BY WILLIAM FORBES, ADVOCATE.

Robert Brown of Carsluith,
v.
Thomas Maxwell of Cuill

Date: 11 July 1706

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The deceased Hugh Maxwell of Cuill having, in anno 1660, married Anna Boyd, relict of Robert Brown of Carsluith, whom he found in possession of the whole estate, he continued the said universal possession, although his wife had only right to a yearly liferent of 1400 merks. In the year 1667, he accquired an apprising of the estate from one James M'Gowan; and in anno 1680, transferred the same in favours of Robert Brown, now of Carsluith, his stepson, for advancing his marriage with Crawfordstoun's sister. Which translation, after narrating the apprising at M'Gowan's instance, and his disposition to Cuill, bears, “That Cuill, for certain sums of money, transfers and dispones the said heritable right by virtue of the foresaid disposition and assignation, &c. Together with the haill sums of money, principal, annual-rents, and expences, and sheriff fee contained in the foresaid apprising assigned by M'Gowan to him ; and all right, title, interest which Cuill had, has, or may have thereto in time coming, &c. with power to call for the maills and duties thereof, as also the haill sums of money, principal, annual-rents and expences above transferred, which were disponed to him by M'Gowan, &c. Whilk Cuill obliges him to warrand from his own proper fact and deed allennarly; that is, that he had not done nor yet should thereafter make any other assignation, translation, disposition, renunciation, or any other security of the premisses to no other person or persons, &c.” Upon this translation the said Robert Brown pursued Thomas Maxwell of Cuill, as representing his father, granter thereof, for his father's intromissions with the rents of the lands apprised preceding his conveyance of the foresaid apprising in favours of the pursuer, in so far as they exceeded his wife's life-rent.

Alleged for the defender,—He cannot be liable for any of his father's intromissions before translation of the apprising; because any intromission he had was allennarly, by virtue of his wife's life-rent right, and not by virtue of the apprising, which he never made use of, but, after it had lain long dormant beside him, disponed it to the pursuer talis qualis as it was. 2. The warrandice in the translation from fact and deed, is expressly qualified and restricted to dispositions, renunciations, or translations of the right, and obliges not against intromissions.

Replied for the Pursuer,—This translation not being a disposition of lands, but of the apprising itself tanquam optimam maximum, and haill sums therein contained, principal, annual-rents and penalties; if the disponer, by his intromission, hath got payment of any part thereof, the defender must make the same good to the pursuer, who has mails and duties assigned to him without restriction, and all that was assigned by M'Gowan. Now M'Gowan had right to the rents craved, and therefore the warrandice must extend thereto. The super-intromissions not life-rented cannot be ascribed to Cuill's title by his wife, but to the apprising, which was the only title existing in his person at the time. 2. Assignations, translations, dispositions, and renunciations in the warrandice, comprehend all the writs the cedent could have made to the principal debtor, or to any third party except tenants : and the subsequent words, “or any other security of the premisses, to no person or persons,” plainly include his own super-intromissions; the same way as in the case of his translation of an infeftment of annual-rent, or any infeftment in security of a sum in the same terms, his bygone intromissions, that might have extinguished the subject assigned, would have fallen under the warrandice.

Duplied for the Defender,—The disponing of the apprising by the defender's father, with all right which he had or might have by virtue of the assignation from M'Gowan, implies that he intended only to dispone what right he had so acquired, such as it was. And since he never intromitted by virtue of the said apprising, the warrandice in his assignation thereof can never make him liable for any intromissions he had, which his wife's possession and his own bona fides do abundantly legitimate.

The Lords found the warrandice was incurred by the defender's father's super-intromissions with the rents of the estate above his wife's jointure, preceding the conveyance of the apprising to his stepson. And remitted to the Ordinary to hear parties as to how far the defender is liable.

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