Welsh v Russell [1984] ScotCS CSIH_1 (19 May 1894)

Welsh v Russell [1984] ScotCS CSIH_1 (19 May 1894)

A purchaser under a disposition with absolute warrandice, in a case of partial eviction due to an undisclosed servitude, is not entitled to claim the value of the subjects on reconveyance; the only remedy is indemnification for actual loss sustained. As the summons contained no averment or conclusion for such loss, the action must be dismissed.

Citation
[1984] ScotCS CSIH_1
Parties
Pursuer (respondent): William Welsh; Defender (reclaimer): James Russell
Jurisdiction
Scotland
Judgment Date
19 May 1894
Procedural Posture
Civil Property/contract / Appeal (reclaiming Note) From Lord Ordinary to Inner House
Outcome
Action dismissed as incompetent; defender entitled to expenses.
Legal Topics
Sale of Heritage, Warrandice (warranty), Servitude, Eviction, Indemnity, Damages, Expenses (costs)
Property Law Contract Law Sale of Heritage Warrandice (warranty) Servitude Eviction Indemnity Damages +1 more

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Parties

William Welsh

Pursuer (respondent)

James Russell

Defender (reclaimer)

Procedural Posture

Civil Property/contract / Appeal (reclaiming Note) From Lord Ordinary to Inner House

Legal Issues

  1. 1 Whether a purchaser under a disposition with absolute warrandice is entitled to claim the value of the subjects on reconveyance in case of partial eviction due to a servitude, or is limited to indemnity for loss sustained.
  2. 2 Whether the existence of a servitude constitutes a breach of warrandice justifying rescission or only damages.
  3. 3 Whether the defender is entitled to expenses for proof where the action is ultimately dismissed as incompetent.

Ratio Decidendi

A purchaser under a disposition with absolute warrandice, in a case of partial eviction due to an undisclosed servitude, is not entitled to claim the value of the subjects on reconveyance; the only remedy is indemnification for actual loss sustained. As the summons contained no averment or conclusion for such loss, the action must be dismissed.

Court Disposition

Action dismissed as incompetent; defender entitled to expenses.

Orders

  • Recall interlocutor of Lord Ordinary dated 10 November 1893.
  • Dismiss the action and decern.