Scottish Court of Session Decisions

Subject_1 BANKRUPT.
Subject_2 DIVISION V.

Decisions upon the clause of the Act of 1696, declaring Heritable Bonds, &c. to be held as granted of the dates of the Sasines taken upon them.

Menzies
v.
Menzies

Date: 17 February 1715
Case No. No 258.

It was disputed whether the date of the sasine itself, or of the registration of it, ought to be the rule for computing the 60 days. Found to be the date of the sasine.

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In the cause, No 96. p. 981. the creditors having further insisted to reduce certain securities granted by Mr John Menzies for his good-daughter's provision, upon the act 1696, which declares all real rights to be reckoned as granted from the date of the infeftments, and not from the date of the deed, whereupon the infeftments is to follow, when the granter is under the qualifications mentioned in that act: They alleged, That though the date of the sasine be not within the 60 days of the disponer's being bankrupt, in the terms of that statute, yet the registration of the infeftment is within the 60 days, and this being the deed that makes the same public, and renders it effectual, must be the meaning of the act, when it speaks of the date of the sasine; for thus a posterior infeftment first registrate, will be preferable to a prior infeftment thereafter registrate.

Answered for the defenders, That the act 1696, being introduced præter juris communis regulas, and having a retrospect to all deeds done within 60 days before the breaking; and a further presumption that deeds, whereupon infeftment may follow, are of the date of the infeftments to be taken thereupon, therefore the words of the law are most strictly to be followed. Now the statute speaks nothing of the date of the registration, but of the sasine only; and the registration is a distinct act from the taking of the sasine, and therefore would have been noticed by the act, had the legistature intended to have made the presumption draw down so far: And then parties would have been put upon their guard to registrate their sasines, so soon as they were taken: But the law, that allows 60 days, standing in force, it was optional to the lady to registrate any time within that space.

Replied for the pursuers, That whatever be the words of the law, yet judges must so interpret them, as that they be not rendered elusory and ineffectual, for the ends proposed: And the fraud here being so palpable, and the registration delayed to the very last of the 60 days, res ipsa loquitur, that this turpe luerum est extorquendum.

The Lords found, That, in the case of the wife, the 60 days relating to deeds made by a bankrupt, commence from the date of the sasine, and not from the date of registration: And therefore repelled the reasons of reduction.

Act. Gray & Robert Dundas. Alt. Graham & M'Leod. Clerk, Sir James Justice. Bruce, No 73. p. 88. *** Dalrymple observes the same case:

The pursuer further insisted (See No 96. p. 981.) for reducing the infeftments granted by Mr John Menzies, the bankrupt, for securing the said liferent-provision, in respect that he fled, and was under the other qualifications mentioned in the act of Parliament 1696, within 60 days of the registration of the sasine.

It was answered: The 5th act of Parliament 1696, reckons the 60 days not from the date of registration of sasines granted by bankrupts, but from the date of the sasines, and there intervened much more than 60 days betwixt the taking of the sasines and the granter's withdrawing.

It was replied: The 5th act 1696, does indeed reckon the 60 days only from the date of the sasine; but the 18th act of the same Parliament founds the pursuer's reason of reduction, in as far as it is thereby statute and declared, that no sasine, or other writ or diligence appointed to be registrate, shall be of any force or effect against any but the granters, and their heirs, until it be duly booked and insert in the register; so that, as by the former act the date was made the terminus a quo, by the last act the 60 days run from the registration, for a very good reason expressed in the narrative, viz. That unless sasines and other writs be booked and insert in the registers, the lieges cannot be certiorate thereof; which is the great use and design of registration. The taking of sasine is as latent as the subscribing of bonds or dispositions; and therefore it was very well provided, that the publication of them, by inserting them in the register, should only be respected.

It was duplied: That the act 18. was not designed for any extension of the act 5 concerning notour bankrupts, hut only for ranking of infeftments and other diligences requiring registration; for the act of bankrupt having extended the effect of insolvency to 60 days preceding the date of the sasine in favour of creditors, which is a period beyond what was ever known in our law, or any other nation, might prove a snare to creditors or others not knowing, or in a condition to know, the state of an insolvent person's affairs; and it is specially to be observed in this case, that the defender was in optima fide to accept a right for securing of her onerous liferent, and was no manner of way participant of the fraud alleged upon, by keeping the infeftments latent for 58 days betwixt the date and registration.

The Lords found, “That the 60 days were only to be computed from the date of the sasine, in so far as concerns the lady's liferent-provision, who was noways partaker of the alleged fraud.”

Fol. Dic. v. 1. p. 86. Dalrymple, No 137. p. 190.