Scottish Court of Session Decisions

Subject_1 WARRANDICE.

Alexander Hill,
v.
James Yeaman and William Hogg

Date: 19 December 1769
Case No. No. 87.

In an action of damages upon warrandice, for the eviction of an heritable subject, when is the eviction undenstood to have taken place? and at what period is the value of the subject evicted to be regarded, so as to ascertain the amount of the pursuer's claim?

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In the year 1756, Yeaman sold to Hogg a tenement of lands, shops, and brew seat in Dundee, binding himself to deliver a valid and proper disposition to the subjects. Hogg made over the purchase to Hill upon the same terms and conditions, who entered to possession, and meliorated the subject by necessary repairs. Yeaman's title to the shops and brew-seat had, it seems, been a bad one; for in 1759 Elizabeth Reid brought a challenge of the adjudication, the ground of that title, as having been deduced against a wrong person as heir. Appearance was made, both for the pursuer and defenders, in the action at Elizabeth Reid's instance; the expence of which the defenders defrayed.

In August 1760 a sequestration was awarded of consent; and in January 1762 Lord Minto, the Ordinary in the cause, pronounced an interlocutor, sustaining the adjudication “as a security for the sums adjudged for;” thereby deciding that it no longer subsisted as a right of property. In this judgment the defenders, Yeaman and Hogg, acquiesced; but as Mrs. Reid did not, the interlocutor in that process was not finally settled till the 15th July 1766.

The pursuer, Hill, then brought an action against Yeaman and Hogg, his authors, for the value of the subjects evicted, and for the rents he had been obliged to pay to the judicial factor after the sequestration. In this action he maintained that he ought to be allowed the value of the subjects as at the date of the interlocutor 15th July 1766; while the defenders, on the other hand, contended they were liable for the value only as at the period when the action at Mrs Reid's instance was brought, or, at any rate, when the sequestration was awarded. The Lord Ordinary, by two several judgments, 28th February and 26th July 1769, found, “That the eviction of the shops and brew-seat is to be held as taking place at the date of the sequestration; and that the pursuer is entitled to the value thereof as at that period.”

Pleaded by Hill in a reclaiming petition,

1mo, In all sales for an onerous price warrandice was implied; and as the sellers could not make the purchase good, they must make up to the purchaser quod deest to him by the eviction. Erskine, B. 2. T. S. § 26. Bankton, B. 2. T. 3, § 124. says, “warrandice, in disposition of lands extends to the whole value of the subject as it is at the time of eviction:” and according to Lord Stair, “the whole worth of what is evicted, as it is the time of eviction is inferred.”

2do, The time of eviction could mean no other than the date of the final judgment, by which the subject was carried off. Till decree was finally pronounced in the process, it was uncertain whether there could be any eviction at all; during the dependence of the process it was still doubtful who would prevail; and as the purchaser would be barred from having recourse upon the warrandice against his author till eviction actually happened, and of course an action for indemnification in these circumstances premature, the date of the decree seemed to be the only terminus habilis at which the value of the subjects evicted ought to be fixed.

3tio, The adopting of any other rule would be productive of inequality and injustice. If this was not fixed, the defender might with equal reason pitch upon any time that was most advantageous to himself; and, as the pursuer must admit, that if the value was to be diminished at the period of eviction, he could claim only the amount, he was equally entitled to the chance of an eventual rise.

Answered for the defenders.

1mo, The pursuer's argument proceeded upon the erroneous supposition, that the purchaser could not bring his action of eviction till eviction had actually taken place by a final decree; but instances occurred every day where the purchaser raised his action whenever the challenge was brought against himself, Dict. h. t. supra.

2do, It was in a purchaser's power, whenever a challenge was brought, immediately to give up the subject to the challenger; and he would nevertheless be entitled to recur upon his warrandice, provided itappeared that no good defence could have been pleaded by the seller, had he been in the field. Voet. ad Dieg. L. 51. De Evictions See No. 61. p. 16605. Now if this would hold good on one hand, it was equally clear upon the other, that the seller might, whenever the challenge was made, immediately tender to the purchaser, his damnum et interesse, and insist that he should restore the subject; and if the purchaser did not incline to do so, but to litigate the matter, he could not surely insist that the seller should be liable to him for an additional value to which the subject had accidentally risen during the dependence of an utenable process. In the present instance, therefore, had the pursuer immediately yielded the subject, he would have drawn merely the price he paid, the houses not having then increased in value; if the defender had tendered the damnum, the result would have been the same; and hence it was reasonable that the period of challenge should be that at which the damage was or might be ascertained, without requiring a sentence, or paying any regard to the accidental duration of a law-suit.

3tio, According even to the pursuer's doctrine, the period of eviction could never be brought down latter than the date of the Lord Ordinary's interlocutor, sustaining the adjudication only as a security; as by this judgment the title as a right of property was cut down, and the subject of course completely evicted.

The Court found, “That the eviction of the shops and brew-seat within mentioned took place at the date of the interlocutor pronounced by the late Lord Minto upon the 6th January 1762, restricting the adjudication to a security for the sums adjudged for; and remit to the Lord Ordinary to proceed accordingly.

Lord Ordinary, Hailes. For Hill. J. Douglas. For Yeaman and Hogg, J. Maclaurin. Clerk, Ross. Fac. Coll. No. 9. p. 23.