Robert Glendinning of Partoun, v. John Irvine of Drumcoltran
Date: 6 January 1710 Case No. No. 76.
A charter of apprising bearing for onerous causes and warrandice from the granter's fact and deed not considered as granted only in obedience, and the granter's heir not allowed” to quarrel the same for not production of the original rights, in respect of the obligation of warrandice.
Click here to view a pdf copy of this documet : PDF Copy
In a reduction and improbation pursued by Robert Glendinning, against John Irvine, for reducing a decreet of apprising of the lands of Barwhillanty from John Maxwel, obtained by Thomas Lidderdale of Gerran (alias St. Mary Isle) and a charter of apprising granted to him by the deceased Robert Glendinning of Partoun the superior, bearing, For certain onerous causes, and warrandice from his proper fact and deed; to which apprising and charter John Irvine acquired right in the year 1690;
Alleged for the pursuer: The decreet of apprising was pronounced against John Maxwel who never had right to the lands; and the charter of apprising, not an original right, but given only in obedience to the decreet, did communicate no further right than stood in the debtor's person, against whom the apprising was led; seeing it contains no clause of novodamus.
Answered for the defender: Though common charters of apprising, understood to be granted in obedience and ex necessitate juris, do not prejudice the superior of his right to the lands apprised; yet here the superior having freely gone beyond the terms of an ordinary charter of apprising, by not mentioning a previous charge to have been given, by expressing that he granted it for onerous causes, and obliging himself and his successors to warrant the same from their fact and deed, which he was under no necessity by law to do; these clauses must operate as effectually against him as a novodamus. Especially considering, that the defender, a singular successor by apprising, cannot be supposed to have the original writs, which de facto are abstracted and kept out of the way by the debtor, who colludes with the pursuer.
Replied for the pursuer: All charters of apprising do justly bear the like narrative for onerous causes, whereby is meant, only the years rent due to the superior for granting the charter. Albeit the defender's charter mention not the giving of a previous charge, it narrates the apprising, and the Lords' allowance, whereby the superior was nominatim decerned to grant a charter in favours of the appriser; so that his granting thereof can never be understood a voluntary act, but a receiving the appriser in obedience, to give him preference in a competition with others, salvo jure cujuslibet et superioris, Stair, Instit. Lib. 2. Tit. 4. § 12. Lib. 3. Tit. 2. § 25. The clause of warrandice from fact and deed, imports no more, than that the superior neither has, nor shall by any deed of his prefer another creditor to the appriser; which is the least of all warrandice, and implied in all cases, whether; expressed or not. Again, warrandice from fact and deed being regulated by the nature of the writ to which it is adjected; it imports only in this case, that the charter is good in its kind, viz. a sufficient charter of obedience, and that the superior has done no deed to incapacitate him to grant the same, and shall do nothing in prejudice thereof, such as it is.
The Lords found, That the charter granted by the deceased Robert Glendinning of Partoun, to Thomas Lidderdale appriser of the lands of Barwhillanty, cannot be considered as given in obedience; and that the pursuer cannot quarrel the property, in respect of the obligement of warrandice.
