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Scottish Court of Session Decisions >>
Burnet v Johnston. [1666] Mor 16586 (17 July 1666)
URL: http://www.bailii.org/scot/cases/ScotCS/1666/Mor3816586-041.html Cite as:
[1666] Mor 16586
Warrandice found to give recourse, though there would be no present distress.
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Johnston of Frosterhill having disponed his lands with absolute warrandice in favours of Gordon of Lesmore; reserving his own and his wife's liferent; and thereafter having disponed the same lands in favours of Mr. William Johnston, who did obtain the first infeftment; and being charged at the instance of Alexander Burnet, having right by assignation to the disposition in favours of Lesmore; the letters were found orderly proceeded; notwithstanding the suspender alleged the charger had no interest during the suspender's life; seeing he never did nor could possess, by reason of the reservation foresaid. And the Lords found a difference, when warrandice is craved upon a deed of the party obliged, and upon any other ground; and that as to his deed he may be charged to purge it, without necessity to allege a distress.
Dirleton, No. 27. p. 9.Stair reports this case.
John Johnston, having disponed the lands of Frosterhill to Gordoun of Lesmore, whose right Alexander Burnet having apprised, and by the apprising, having right to the clause of warrandice contained in the disposition; charges Johnston the disponer, to warrant the right against a posterior right, granted by him, to William Johnstoun, who had obtained first infeftment. It was answered, that the warrandice could have no effect, because there neither was, nor could be a distress, in so far as in William Johnstoun's disposition, John Johnstoun's and his wife's liferent were reserved, during whose life he could never distress Burnet. 2dly, It was Burnet's author's fault, that for many years, he did not take infeftment, having long right before the second disposition. It was answered, that Johnstoun himself could never object this delay, to excuse his fraudulent deed, of granting double dispositions, whereby parties become infamous by the act of Parliament, 1540. Cap. 105. and unto the other point, albeit there was no present distress, yet there was unquestionable ground of a future distress, against which the defender could answer nothing, that could elide it, and who being but a naked liferenter, if no execution should pass upon the clause of warrandice during his lifetime, he would be fully frustrated.
The Lords decerned Johnston the disponer, to purge the posterior disposition, granted by him, and found neither of the allegeances in the contrary relevant.
