Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by WILLIAM FORBES, ADVOCATE.

William Wilson, Merchant in Edinburgh,
v.
Eizabeth, Anna, and Catharine Shorts, Daughters to the deceased Alexander Short in Stirling

Date: 4 January 1712

Click here to view a pdf copy of this documet : PDF Copy

In the reduction, improbation, and declarator at the instance of William Wilson, as having right by progress to an apprising of a tenement in Stirling, and some adjacent acres, belonging to the deceased Alexander Short, with infeftment thereon, for payment of 2300 merks contained in a bond granted by him to the pursuer's author, against Elizabeth, Anna, and Catharine Shorts; for reducing a disposition and infeftment of the lands granted by Alexander Short to the defender's author; and for declaring the property of the lands to belong to the pursuer: the defenders offered to exclude him, by the said disposition and infeftment produced.

Alleged for the pursuer.—The defenders cannot exclude him by the right in their person, in regard they, as heirs to Alexander Short, the pursuer's debtor, are personally liable, as he was, for the debt in the apprising; for quem de evictione tenet actio, eundem agentem multo magis repellit exceptio. And this process being mutua petitio, or a competion, if the defenders should be preferred, the pursuer would have action upon Alexander Short's warrandice, against them as representing him.

Duplied for the defenders.—1. A passive title is not a title in a reduction of real rights, but a medium concludendi in a personal action for payment. 2. Were the pursuer's right a disposition, which the granter, or his representatives, are obliged to warrant; the defenders, did they represent the granter, could not indeed exclude it by any right in their person. But albeit a comprising doth carry all right that was in the debtor's person at the time, and he and his representatives are liable for the debt therein contained; yet they are not liable to warrant the apprising, nor tied up from excluding the same by preferable rights in their person; for an expired apprising might carry the whole subject apprised; whereas an action for payment of the debt therein, doth only make the debtor's representatives liable to the extent thereof.

Answered for the pursuer.—Albeit regularly no recourse of warrandice is competent to an appriser, nor any jus superveniens authori doth accrue to him: Yet he hath exceptionem doli against his debtor, pretending, by virtue of posterior titles, to possess the lands apprised; and may make use of that exception by way of reduction, in order to declare his own right of property against the debtor or his heirs. The passive title is not here the immediate concludendi medium; but comes only in by way of reply, when the defenders found upon their rights.

The Lords found it not competent to the pursuer to reply to the defenders, upon a passive title, that they were heirs to Alexander Short, in this reduction; without prejudice to his right by way of action as accords.

Page 571.