The Trustees of Mrs Calderwood Durham, v. Robert Graham and Others
Date: 9 July 1800 Case No. No. 95.
Certain lands were sold with real warrandice over other lands retained by the disponer. The lands sold were possessed without objection, upon regular feudal titles for above a century, during which infeftment in security had regularly been taken on the warrandice lands. In the mean time, the latter had been twice sold with personal warrandice, and having been now sold a third time, as free from encumbrances, the purchaser refused to pay the price, till the infeftment in warrandice was discharged; but the Court repelled the objection.
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Lord Torphichen, in the year 1689, sold the lands of Polbeth to Thomas Flint. In security of the purchase, his Lordship gave real warrandice over the lands of Camelty and others retained by him.
The lands of Polbeth have ever since been possessed, without objection, by Flint's heirs, on regular feudal titles.
In the mean time, the warrandice lands had been twice sold, under burden of the infeftments in security, with personal warrandice from the disponer.
In the year 1796, they were, for the third time, sold by Mrs. Calderwood Durham, to whom they now belonged, to Robert Graham, by a minute of sale, which specified certain incumbrances affecting the lands, (without mentioning the infeftments in security,) and bore, that there were no other on them.
Mr. Graham having discovered these infeftments, refused, on Mrs. Durham's death, to pay the price to her trustees till they were cleared off, and on that ground suspended a charge for payment. He likewise brought an action against the trustees, concluding, either that they should disencumber the lands, or the bargain should be declared null, and the trustees liable in damages.
The trustees brought an action against the present Lord Torphichen, founded on the personal warrandice in the disposition of Camelty, &c. by his predecessor, concluding, that he should either disencumber the lands of the infeftment in favour of Polbeth, or relieve them of the objection made by Mr.Graham.
They likewise brought an action against William Flint of Polbeth, concluding, that as his right to these lands was now completely secured by prescription, he should be ordained to renounce his infeftment over Camelty, &c. as no longer of any use to him.
The Lord Ordinary reported the whole on memorials.
Graham contended, That having purchased the lands as free from any encumbrance, except those specified in the minute, among which the infeftments in real warrandice were not enumerated, he was entitled to have them taken off; because, although the right to Polbeth was apparently secured by prescription, the effect of it might be prevented by minorities or otherwise, and he was obliged to submit to no risk whatever.
The trustees argued alternatively, that, as Polbeth had been so long possessed upon regular feudal titles without objection, the infeftment in warrandice was now merely nominal, and could not possibly become a ground of eviction from Mr. Graham, and therefore afforded no reason for his withholding the price; or if the Court thought that Mr. Graham was entitled to have it discharged, either Mr. Flint should be ordained to relinquish it, or Lord Torphichen obliged to indemnify the trustees, upon the personal warrandice in his predecessor's disposition of Camelty, &c.
Flint maintained, that he could not be bound to relinquish his infeftment, without receiving an equivalent in other lands; and that, if his security was, as supposed, useless to him, it could be of no prejudice to any other person.
Lord Torphichen admitted, that in case of eviction, of which he alleged there was no danger, he was bound to warrant the right to Camelty, &c. but he added, that it was not in his power, and he was under no obligation to disencumber the lands from the infeftment in security, the disponee, from his predecessor, having accepted of personal warrandice against it.
The Court thought Mr. Graham, in the circumstances of the case, too scrupulous, and therefore conjoined the different processes, found the letters orderly proceeded in the suspension, assoilzied the defenders in the other actions, and found the pursuer (Mr. Graham) liable in expenses. A reclaiming petition for Mr. Graham was, (18th November, 1800), refused without answers.
Lord Reporter, Methven.For the Trustees, H. Erskine.For Mr. Graham, Ja. Graham.For Lord Torphichen, Hope.For Mr. Flint, Gillies.Clerk, Home.
Fac. Coll. No. 191. p. 438.
