Scottish Court of Session Decisions

Subject_1 HOMOLOGATION.
Subject_2 SECT. VI.

Consent not presumed, when the Deed can be ascribed to another Cause.

Alexander Gibson of Durie
v.
John Trotter of Mortonhall, and the Executors of Gilbert Clerk of Pitteuchar

Date: 18 July 1710
Case No. No 76.

Reduction of rights excepted out of warrandice sustained, altho' acknowledged in græmio of the pursuer's right.

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Helen Trotter, with consent of John Foulis apothecary, having granted to the deceast John Gibson of Durie, in anno 1669, a disposition of an old apprising of the Earl of Home's estate, wherein the granters excepted from the warrandice, a disposition made by him to Mr George Trotter of Chesterhall, of the lands apprised, in so far as concerned, or might be extended to 3000 merks; and also their disposition of these lands to the executors of Mr Gilbert Clerk of Pitteuchar, in so far as might be extended to 4000 merks;—in a reduction, improbation, and declarator, at the instance of Alexander Gibson now of Dury, as having right to the disposition in favours of John Gibson his predecessor, against John Trotter of Mortonhall, as representing Mr George Trotter, and the executors of Mr Gilbert Clerk, the Lords found the defenders obliged to take a day to produce the dispositions excepted in the warrandice of that granted to the pursuer's author;—albeit it was alleged for the defenders, That their rights being acknowledged in græmio of the pursuer's, reserved and accepted out of it, he cannot quarrel or reduce the same;—in respect it was answered for the pursuer, That the exception in the warrandice of his right, doth not make a right to the defenders, but only secure from recourse against the granter; and so doth not hinder the pursuer to quarrel and reduce the excepted rights upon nullities, or to declare the same to be satisfied and extinct, by the receiver's intromissions with the rents of the subject disponed.

Fol. Dic. v. 1. p. 381. Forbes, p. 423.