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A purchaser at a public roup sought a defalcation, upon account of the teinds purchased by him along with the stock, to which he alleged the bankrupt had no good right. It was answered, That he purchasing with his eyes open, knowing the nature of the rights to the subject, and having also the creditors bound in absolute warrandice for the sums they receive, there ought to be no defalcation. The Lords found the pursuer was not entitled to a deduction of the price, but that, if he would, he might give up the bargain. It was taken notice of, that the case was not of a total want of right. Here was a right ex facie good, the purchaser only starting objections, which were never sustained to infer a defalcation of the price.
Fol. Dic. v. 2. p. 358.*** Kilkerran reports this case:
The estate of Boquhan having been brought to a sale before the Lords by Mrs Helen Cuningbam, as apparent heir, and the Earl of Morton having become purchaser of a part of the lands, with the teinds thereof, the Earl did thereafter insist for a defalcation of the price, on account of an objection discovered to the sellers right to the teinds; or that he might be allowed to retain the price corresponding to the teinds, for his security in case of an eviction, paving the annualrent thereof in the mean time.
But the Lords “refused to allow him either;” the right being ex facie good, and he having the creditors' warrandice, to the extent of the debts whereof they received payment; but in respect of the discovery made of a possibility of eviction, found that the earl might give up the bargain if he pleased.
