Scottish Court of Session Decisions

Subject_1 OBLIGATION.
Subject_2 SECT. III.

Personal Obligation.

Patrick Watt
v.
William Halyburton

Date: 14 June 1667
Case No. No 14.

Obligation to infeft.

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Patrick Watt, as assignee by Adam Watt his father, to a disposition granted by umquhile——Halyburton to him, pursues William Halyburton, as representing him, to fulfil that part of the disposition, obliging him to procure the pursuer's father infeft; and for that effect, that the defender should infeft himself, and grant procuratory of resignation, for infefting the pursuer. It was alleged for the defender, That he was not obliged to infeft the pursuer, because it was his father's fault he was not infeft, seeing he had received procuratory of resignation, and precept of sasine, with which he might have infeft himself; and though the granter, and he the receiver, lived for twelve or fifteen years thereafter, he was negligent; 2do. Though the defender were obliged to enter, and denude himself, yet it must be the pursuer finding caution to warrant and relieve him of the hazard of the ward and marriage, because the lands in question being ward through the pursuer's author's fault, the defender's marriage will fall; 3tio, The defender's father's name was only borrowed by Hallyburton of Eglescairn, who acquired the rights blank, and filled up the defender's name therein, and moved him to dispone.

The Lords repelled these defences, but reserved to the defender to pursue damage and interest, for any hazard occurred by Adam Watt's fault, as being more proper against his heir, than against the pursuer his second son.

Stair, v. 1. p. 461. *** Dirleton reports this case:

James Halyburton being infeft upon a comprising, in some acres in Dirleton, did grant a disposition of the same to Adam Watt, whereby he was obliged to infeft him by two infeftments; whereupon the said Adam Watt his son, having right by assignation from his father, pursued William Halyburton as heir to the disponer, for implement and obtaining himself infeft, and thereafter to infeft the pursuer. It was answered, That the disposition was in the hands of Adam Watt by the space of twenty years, and that he had made no use thereof; and that the defender's father had done all that he could, for denuding himself of the said right, the said disposition bearing a procuratory of resignation; and that the lands holding ward, if the defender should enter, his ward and marriage would fall; so that unless the pursuer would warrant him as to that hazard, he cannot be obliged to infeft himself.

The Lords decerned, reserving action to the defender for damage and interest as accords.

Dirleton, No 82. p. 34.