Scottish Court of Session Decisions

This was an action brought in the Sheriff Court at Dunfermline by Thomas Christie, flesher, Dunfermline, against Peter Hay Cameron, Solicitor before the Supreme Courts of Scotland, Edinburgh, proprietor of the lands of Clune, near Dunfermline. The pursuer prayed the Court to decern and ordain the defender instantly to disburden

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certain heritable subjects, which the defender had sold to the pursuer, of two bonds and dispositions in security, one for £7000 and the other for £1200, and of any other bonds and dispositions in security which might be found to exist affecting said subjects.

By disposition dated and recorded February 1893, the defender, in consideration of a payment of £75 made to him and his sisters, Isabella Cameron and Margaret Cameron, inter alia disponed and conveyed to and in favour of the pursuer, his heirs and assignees whomsoever, heritably and irredeemably, ‘All and Whole that strip of ground (formerly a strip of planting) being part of the estate of Clune, adjoining the piece of ground before disponed,’ … with his whole right, title, and interest, present and future, therein. The defender also granted absolute warrandice. By disposition dated and recorded November 1894, the pursuer, with the consent of the after—named John Seton, in consideration of the sum of £490, inter alia, disponed the subjects above described to Mrs Jane Begbie or Seton, wife of John Seton, railway brakesman, then residing at No. 1 Ivy Terrace, Edinburgh. At the settlement of this transaction the pursuer's agent, in order to carry through the same, was obliged to grant the usual obligation to clear the record on a search disclosing burdens being presented to him within a short period thereafter, and as it had been previously ascertained by the purchaser's agent that the bonds and dispositions in security after mentioned affected the subjects before described, the sum of £30 was retained by him from said price of £490, as the value of said subjects, to be deposited in bank to await the fulfilment of said obligation.

Upon a search being obtained by Mrs Seton the existence of the bonds referred to in the prayer of the petition was disclosed, and her agent having consequently requested the pursuer to have the record cleared, his agent called upon the defender to have the bonds restricted so far as the strip of ground was concerned, but the defender refused to do so.

The defender explained that the strip of ground in question was a small strip or fringe of rough pasture and brushwood incapable of cultivation; that in the opinion of the pursuer himself, as expressed in writing, its annual value to him as proprietor of the adjoining land did not exceed one shilling; that to any other it was worth absolutely nothing; that the price of £75 was the price of the feu-duty amounting to £2, 8s. 2d. per annum, and minerals conveyed by the other part of the disposition; and that the capital value of the strip of ground could not exceed twenty-five shillings; that as he regarded his title to the ground in question as doubtful, the pursuer having occupied it without paying rent, he practically presented it to the pursuer, and that consequently at the settlement of the sale to the pursuer no obligation to provide searches or to clear the record was given by the defender, but that on the contrary it was expressly stipulated by the defender, and agreed to by the pursuer, that no search was to be given.

The pursuer pleaded—“The defender having sold to the pursuer the subjects and others described in the prayer of the petition with absolute warrandice, and there having been found upon the record burdens affecting the same, the prayer of the petition should be granted, with expenses, as craved.”

The disposition by the pursuer to Mrs Seton contained the usual clause of warrandice

On 9th September 1896 the Sheriff-Substitute ( Gillespie) issued the following interlocutor—“The Sheriff-Substitute, having considered the cause, finds that the pursuer having been divested of the subjects, and not having incurred any loss, judicially established, by the defender's contravention of warrandice, has no title to sue this action: Dismisses the action: Finds the defender entitled to expenses on the lower scale,” &c.

Note.—“By disposition dated and recorded February 1893 the defender sold to the pursuer a small strip of ground.

By disposition dated and recorded November 1894 the pursuer resold the strip of ground to a Mrs Seton.

Both dispositions contain the usual clauses of warrandice.

In this action the pursuer seeks to have the defender ordained to disburden the subjects of two bonds granted by the defender, by which a search shows it to be affected.

It is not possible to say what consideration was either paid or received by the pursuer for the ground, as in both cases the conveyance included other subjects for a slump sum. But the defender says that the value of the strip is a mere trifle, and that if he is liable in warrandice he would prefer to pay its value rather than be at the cost of clearing the record.

While the correct conception of warrandice is not an obligation to protect, but only to indemnify in case of eviction, the rule seems to have grown up in practice and to have been sanctioned by decisions, that if a threatened eviction arises upon the deed of the immediate author, the purchaser is entitled to call on him to clear the record without waiting till the property is evicted or carried off. See Montgomerie Bell's Lectures, 1st ed., p. 207. It may therefore be conceded to the pursuer that if he had still been vested in the subject acquired from the defender he could have sued the defender to disburden the subject of bonds granted by the defender without waiting till the creditors in the bonds took action, though it is thought that a tender by the defender of the value of the subject, as the same should be ascertained, would have been a sufficient answer to the action.

But the pursuer being entirely divested of the subject, and Mrs Seton's title to it being complete, the right to call on the defender to disburden the subject has passed with the subject to Mrs Seton — Ersk. ii., 3, 31. The pursuer has, no doubt, a right to be

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indemnified by the defender for any loss judicially established to which he may be put by the defender's contravention of warrandice. But all that the pursuer avers comes to this, that difficulties have arisen with Mrs Seton's agent in settling the price, and that he has kept back £30 until the subject is disburdened of the bonds. Mrs Seton's right to keep back the money from the pursuer has not been judicially established. Her claim of warrandice against the pursuer, rests not on any adverse right granted by the pursuer himself, but on a right said to be preferable to the pursuer's, and consequently it is at least doubtful whether, if she elects to proceed against the pursuer, she is not bound, in accordance with the fundamental conception of warrandice, to wait for some action on the part of the creditors in the bonds. The defender would be well advised to keep in view the observations of Mr Montgomerie Bell at the top of page 208 of his Lectures (1st ed.), and take the negotiations with Mrs Seton into his own hands. His defence on the merits that the strip in question is not part of the estate of Clune is not very hopeful in the face of the description of it as part of the estate of Clune in his own disposition to the pursuer.”

The pursuer appealed to the Court of Session.

In the course of the discussion counsel for the pursuer stated that he desired to amend his record, which he subsequently did, inter alia, by adding the following plea-in-law:—“II. The defender being bound to disburden the subjects in question of all bonds and dispositions in security affecting the same, decree should be pronounced in terms of the prayer of the petition.”

The argument for the pursuer and appellant sufficiently appears from the judgments.

Argued for the defender and respondent—(1) The pursuer's action was originally founded solely upon the clause of warrandice in the disposition by the pursuer to him. He had no title to sue upon this clause of warrandice, for he had assigned it to the sub-purchaser, who was now alone in titulo to enforce it—Ersk. Inst. ii. 3, 31. One who had assigned an obligation could not sue upon it. (2) The pursuer had no claim against the defender upon the original contract of sale, for all such rights had been merged in the obligation of warrandice in the disposition, which the pursuer had now assigned away. At most, upon the contract of sale he might have a right of relief for anything he might pay to the sub-purchaser, but such a claim of relief could not arise till a claim had been made upon him..(3) This action as laid was incompetent. Warrandice gave rise to a claim for damages, and not to a right to have the burden removed by way of specific performance. The obligation of the granter was to pay damages as indemnity for the grantee's eviction. An opportunity to remove the burden was a favour granted to the seller, and the only decree which could be competently pronounced against him was, failing removal of the burden, to pay damages. At least an action upon warrandice must conclude alternatively for damages, and not solely for an order to remove the burden— Welsh v. Russell, May 19, 1894, 21 R. 769, and Erskine ii. 3, 30, then cited by Lord M'Laren at p. 773; Kettle v. Scott, November 30, 1832, 11 S. 147; Smith v. Ross, February 17, 1672, M. 16, 596, and January 18, 1687, M. 16, 608, at p. 16, 610.

At advising—