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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Smith v Ranken [1835] CA 13_461b (13 February 1835) URL: http://www.bailii.org/scot/cases/ScotCS/1835/013SS0461b.html Cite as: [1835] CA 13_461b |
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Page: 461↓
Subject_Sasine—Writ—Vitiation.—
The year of the era in an instrument of sasine being written on an erasure,—held to infer a nullity, although the year of the King's reign was also given, and not subject to any objection.
In a process of ranking and sale of the heritable estates of the late Alexander Smith of Land, the claimant, Mrs Smith, his widow, lodged a claim to be preferred to the extent of her right of terce. The common agent for the creditors objected to this claim, in so far as regarded two properties called Mongryle or Pointfoot and Knocksting, that the deceased had not been validly seised therein, the instrument being erased in the date. It appeared that the lands in question had been acquired by the deceased by a disposition dated 26th August, 1801, and that a sasine was recorded on the 14th September, 1803, which bore to have been given “upon the second day of September, in the year of our Lord one thousand eight hundred and three, & of the reign of our Sovereign Lord George the Third, &c., the forty-third year.” In the original instrument, however, the word “three” in the year of the era, with the connecting “&” were written on an erasure, and this the common agent contended to be fatal to the sasine.
The Lord Ordinary having found that the deceased had not been validly seised in these lands, and that, consequently, Mrs Smith had no right to terce out of the same, she reclaimed.
The Court ordered minutes of debate.
Pleaded for Mrs Smith—
It is sufficient to validate a sasine, so far as regards the date, that that should clearly appear on the face of the instrument. Here the King's reign is set forth free from any vitiation, and it alone would, be sufficient,
Pleaded for the Common Agent.
It cannot be disputed that the date of a sasine is intra essentialia of the instrument of sasine, and the more important, that the validity of the registration depends on its being within a certain period from the date. Here, however, the year of the era, which is the principal date, is written on an erasure. Supposing that it must be held pro non scripto, there is no authority for maintaining that the King's reign is per se sufficient, the one date being truly required as a check upon the other. But an erased date is different from no date. The erasure proves that a different word from the “three” now written on it must have stood there originally, and so that the one date must have contradicted the other till altered by erasure, and, consequently, the date, as appearing from the instrument, is quite uncertain. It is, therefore, a fatal nullity. 2
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1 Lockhart v. Hamilton, March 5, 1706 (M. 16939); Adam v. Drummond, June 12,1820 (F. C.)i Hamilton, January 4, 1824 (ante II. 640); Gordon v. Earl of Fife, March 9, 1827 (ante V. 550); Gay wood v. M‘Eand, June 19, 1828 (ante VI. 991); Morton v. Hunters and Co., December 10, 1828, affirmed November 26, 1830 (4 W. and S. 379); Earl of Cassilis v. Kennedy, June 3, 1881 (ante IX, 663); see also Stair, 2, 3, 17—18, and 4, 12, 19; 2 Ross, 181.
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2 Stair, 4, 12, 19; and 2, 3, 17; A. v. B., July 22, 1625 (M. 16925); Lawrie v. Reid, July 9, 1712 (M. 12284); Innes v. Earl of Fife, March 10, 1827 (ante V. 559); Stewart, Feb. 20, 1827 (ante V. 383); Dennistoun v. Speirs, Nov. 16, 1824 (ante III.285); M‘Queen v. Nairne, Jan. 28,1824 (ante II. 637).
Lord Cringletie.—I cannot assent to the interlocutor. Erasure is of no importance, if it appear from the deed itself that the word written on the erasure is the word that should be there. If mentioned in the testing clause, it is clear. But the same thing may be shown by the deed otherwise. We in this country will not allow parole, as in England, but if the deed itself show the word to be the right word, that is enough. There would be great danger in sustaining such objections, if it can be avoided. To set aside deeds of such importance, from erasure proved from the deed itself to be accidental, would be very hazardous. The forty-third of the King's reign is admitted to be right, and that shows that the word “three,” in the year of God, is just the word that should be there, and, therefore, I am for adhering.
Lord Justice-Clerk.—I read the case with every inclination to arrive at the same conclusion with my brother. It may be a narrow case, and I am not far from thinking that the erasure was accidental. That, however, is not the principle
Lord Cringletie.—I should explain that I hold the date to be in substantialibus; but I say we have here the date, 2d September, in the forty-third year of the King, which is sufficient.
Lord Meadowbank.—This is a case of very considerable importance, both on account of the magnitude of the interests involved in regard to similar defects, and as it may affect all the land rights of Scotland. The conclusion at which I have arrived coincides with that of Lord Cringletie. If we had to go elsewhere to prove the date, I would hold it absolutely and utterly incompetent. The sole matter is whether we have in the deed what is required by law in giving a description of the date, and whether there is sufficient here to establish beyond all doubt what is the date. Neither in the statutes nor in the decisions is there any prescripta verba by which the date is to be described. If there were merely the year of the reign, it would, so far as I can see any authority to the contrary, be a sufficient authentication, just as much as the year of the era specified. Take “three,” as not specified, and then we have “eighteen hundred and,” with a blank, which is not enough; but I think the year of the king's reign sufficient.
Lord Glenlee.—I am for consulting the other judges. The date, no doubt, is material, yet there may be an unsubstantial variation in the most important part, provided we see clearly, not from extraneous considerations, but from the deed itself, what the date or matter truly is, and that would be sufficient. Suppose the error were in a sum in the obligatory clause in a deed, and it were immediately afterwards repeated, the same sum, without any erasure, would that not do? Now, one date is admitted to be correct; and I even doubt if it would have been a sufficient error if it had read 1823, and 43 of the king's reign. But here I think it altogether immaterial, as there can be no doubt of the real date on the face of the instrument itself. I would, however, wish to consult our brethren.
The Court accordingly (June 14, 1834) ordered the minutes to be laid before the other judges for their opinions. The following were returned:—
Lords President, Balgray, Gillies, Mackenzie, and Corehouse.—We are of opinion that the objection to the seisin in question, that the word three in the date of the year of our Lord is written on an erasure, is a good objection.
A seisin is an actus legitimus; and in all such, therefore, the solemnities and forms fixed by statute, or by immemorial usage, must be strictly adhered to. In the case of a seisin, it has been the form, from time immemorial, that it shall mention the date both of the Christian era and of the King's reign; and it is remarkable that this requisite is not necessary, even in the disposition or heritable bond on which the seisin proceeds. We must hold, therefore, that this double date has been required in a seisin, that the one may be a check on the other; so that, by means of this precaution, the true date may be more certainly ascertained. And it is the more necessary that great precision should be required in the date of the seisin with reference to the registration, which, to be effectual against third parties, must be done within a given period.
In this case, the word three being written on an erasure, it must be held that some other word had been originally written, but afterwards rubbed out, in order that the word three might be substituted in its place; e. g. that the date was originally 1801 or 1802, or 1804 or 1805, which, as neither of these corresponded with the 43d of the King, would have rendered the true date quite uncertain. Therefore it must be held, that there was originally no date at all, by which the time allowed for registration could be regulated. But if the date was originally wrong, as being uncertain, it could not be remedied by the summary mode of inserting what is said to be the proper date, by means of an erasure of the wrong one, There are legitimate modus of rectifying such mistakes, which are well known in practice; and none of these having been adopted in this case, the erasure must be held to be fatal to the deed.
The nullity cannot be rectified by the mere fact of registration, because the clerks at the register office must record every deed that is presented to them for that purpose exactly as it stands; for they are not entitled to judge whether it is valid or not.
It is also proper to remark, that when an estate is to be purchased, or money lent on the scurity of an estate, the agent of the purchaser or lender never contents himself with the production to him of extracts of seisins or other deeds, but always calls for and examines the seisins themselves and other principal deeds; because, besides erasures, there are other fatal objections which cannot be discovered from the records; such as forgery,—the existence of a nearer heir,—objections on the ground of death-bed. Against such objections, he must satisfy himself aliunde, or rely on the clause of warrandice; for the records, however valuable in other respects, neither do, nor by possibility can afford protection to purchasers or creditors in all cases.
But against an objection arising from an erasure, the party can easily guard, by examining the principal seisin, which every agent, who knows any thing of his duty, always does,
This is no doubt a hard case; but there is no help for it; and in this case the objection, however late in point of time, was stated as soon as the interests of the party made it competent to do so.
Lord Moncreiff.—I concur entirely in the substance and conclusion of the Lord President's opinion. I conceive it to be a very clear matter of law, that the registers were never intended to supersede the original instruments, as the essential grounds and evidence of the title, when called for, or to relieve such title-deeds from any fundamental defects or nullities. When, therefore, such an instrument
It is essential to the validity of every instrument of seisin, that it should bear the date both of the Christian era, and of the King's reign. This fixed rule is, I conceive, independent of the system of registration; and it has not been altered by any of the statutes on that subject, though the importance of it may be increased by them. These dates, therefore are inter essentialia of the instrument.
It is an established principle of the law of Scotland, that in all writs of importance, and especially in instruments of seisin, erasures in substantialibus are to be held as vitiations of the writ, inferring nullity. I think it unnecessary to enquire into the presumptions on which this doctrine of the law is founded, the rule itself being settled and indisputable.
The question, whether a particular erasure is in substantialibus or not, sometimes may depend on circumstances in the position and connexion of the word or term which is written on it, but in other cases is at once determined by the nature of the word or term itself as essential to the deed.
In the present case, the word admitted to be written on an erasure is that which denotes the year of the, Christian era; and that being so essential to the validity of the instrument, that it cannot be read without it, it must, in my opinion, be a case of erasure in substantialibus.
Having this view of the law applicable to the case, I humbly conceive that such an objection cannot be obviated by any reasoning of presumptions or probabilities, derived either from the year of the king's reign being fairly written (that being equally essential by itself), or from the state of the copy engrossed in the register, or from extraneous circumstances; and, further, that all arguments against the application of the rule of law to such a case, founded on the idea that the register ought to overrule or supersede the principal instrument, or relieve it from nullities of this description—or on supposed danger to parties who may look at the register alone—are inconsistent with the established law on the subject, and altogether irrelevant to the present question.
Lord Fullerton.—I concur in this opinion.
Lord Jeffrey.—I also concur.
The Court, in conformity with these opinions, adhered to the Lord Ordinary's interlocutor.
Solicitors: James Goldie, W.S.— Thomas Ranken, S.S.C—Agents.
