WILLIAM RAMSAY v Sir WILLIAM A CUNINGHAME (Court of Session)

William Ramsay of Barnton, in 1790, purchased from David Cuninghame, son of Sir William A. Cuninghame of Livingstone, the glebe and church-yard of Gogar, which had been feued by the Presbytery of Edinburgh to Sir Robert Myrton, David Cuninghame's predecessor.

The minister of Corstorphine, in which parish this glebe and church-yard are situate, having obtained decree of reduction of this transaction between the Presbytery of Edinburgh and Sir Robert Myrton, against William Ramsay's representative, the latter brought the present action, for the value of the subjects evicted, against Sir William Cuninghame, founding on the clause of warrandice in the disposition of these and several other subjects, in favour of the pursuer's ancestor, which bound Sir William, along with his son David.

The disposition gives no explanation, as promised in the outset, of Sir William Cuninghame's right or interest in the transaction of the sale; and the parties were not agreed as to how the price was applied.

In defence, it was maintained that, according to the just and legal construction of the clause of warrandice, it does not comprehend or imply the glebe and church-yard of Gogar; more especially considering that, as in a question with defenders, a consenter, or at best a cautioner only, it must be strictly interpreted.

Answered —The disposition itself bears that the price was paid to David Cuninghame, which is to be taken as the statement of the purchaser himself, who, of course, prepared the deed. Farther, it is no part of the pursuer's case in the record that Sir William got any advantage by the transaction.