Scottish Court of Session Decisions

Subject_1 WRIT.
Subject_2 SECT. II.

Deeds signed by Notaries.

Elizabeth and Martha Rollands
v.
Richard Rolland

Date: 1 July 1767
Case No. No. 73.

A deed signed by two notaries, but at different places, and before different witnesses, found not valid, nor supportable by a proof of homologation.

Click here to view a pdf copy of this documet : PDF Copy

George Rolland having purchased some heritable subjects, took the disposition thereof “to himself and his wife in conjunct fee and life-rent, and to the heirs lawfully procreated, or to be procreated, betwixt them, in fee.” After his death, Richard Rolland, his eldest son, obtained a charter of confirmation of the disposition, and a precept of clare from the superior, and was infeft, and died in possession of the heritage in the year 1760.

Richard Rolland, his son, succeeded to him, and, in right of his apparency, continued the possession, and uplifted the rents until the year 1764, when the tenants having refused to make any further payments, he brought an action against them.

In that action compearance was made for Elizabeth and Martha Rollands, his aunts, who produced a sasine in their favours of two thirds of the subjects, dated March 1764, proceeding on a disposition, dated 28th September, 1750, granted by George Rolland their father, disponing the subject to him, and to Richard, their brother, equally; and thereupon they craved preference to two thirds of the rents.

The chief objection stated by Richard Rolland against the disposition and sasine produced, was, That being signed by two notaries at different times and places, and before different witnesses, it was void by the act 1579. The Lord Ordinary “repelled the defence proponed for the defenders, founded on the disposition to the tenement granted by George Rolland to them, and decerned the tenants to pay the rents to Richard Rolland.”

Elizabeth and Martha Rollands reclaimed, and pleaded, That the act of Parliament 1579 having been made solely with a view to prevent forgery, it did not appear to be necessary that the subscription of the two notaries and four witnesses should be adhibited unico contextu, in order to authenticate the deed: The subscription of one notary and two witnesses at one place, and another notary and two witnesses, at another place, it was said, made the notaries co-notaries, and the witnesses co-testes to the same fact, which sufficiently verified it, and took off all suspicion of forgery. 2do, It was offered to be proved, that George Rolland had often acknowleged the deed in favour of his daughters to be his deed; and it was contended, that such acknowledgement, if proved, was sufficient to remove the objection stated against it. And 3tio, it was urged, That, as the disposition to the subject, which was trifling, was taken to the heirs of the marriage in fee, the same, by that destination, fell to be equally divided amongst the children of the marriage; and, in support of that argument, the case of Andrew Scott, determined in the year 1760, was appealed to See Appendix.

Answered for Richard Rolland: That the argument used for his aunts was directly in opposition to the words of the act of Parliament 1579, and all the decisions that had ever followed upon that act. The act itself requires, that the two notaries should subscribe, and four witnesses should be present, at the same time, otherwise the writ to make no faith; and, agreeable thereto, it has always been so decided. 2do, Upon supposition that the deed executed by George Rolland was not valid, it was answered, That a proof of his having acknowleged it to be his deed would have no effect. The law has appointed certain requisites to be observed by every person who transfers his heritage in order to make that transference valid; and if these requisites are not complied with, the deed will be good for nothing, however it is afterwards acknowledged by the granter. If a contrary doctrine was to prevail, the consequences are plain. Our whole system of law, with regard to the formality of writings,, would be overthrown, which the wisdom of ages has found necessary to require in the executing of deeds of importance. And, with regard to the last argument, it was answered, That a provision of an heritable subject to the heirs of a marriage undoubtedly carried that subject to the eldest son, as heir of the marriage, exclusive of all the other children. The distinction betwixt heirs of a marriage and children of a marriage is now well understood in our law. “When an heritable subject is provided in a contract of marriage to the heir of a marriage, the law points out the eldest son to be the heir; in the other case, the maker of the deed excludes the legal succession, and the younger children are admitted to an equal share; and it was said that the case of Scott did not contradict the doctrine, because it was circumstantiate.

“The Lords adhered.”

Act. M'Queen. Alt. Geo. Cockburn. Fac. Coll. No. 65. p. 111.