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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Special Case - Skinner and Others [1876] ScotLR 13_439 (19 May 1876) URL: http://www.bailii.org/scot/cases/ScotCS/1876/13SLR0439.html Cite as: [1876] ScotLR 13_439, [1876] SLR 13_439 |
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Page: 439↓
A vassal being entered with the superior by recording a disposition from a former vassal, held that the superior was not entitled to record the disposition in his chartulary at the vassal's expense, upon a casualty becoming payable.
Miss Sarah Shaw Whitehead and her sisters, the second parties in this case, acquired by singular title from Humphrey Graham, Esq., W.S., certain subjects feued to him by the superiors thereof, the Magistrates of Edinburgh, in 1860. The disposition in their favour from Mr Graham, dated 13th May 1871, was registered in the General Register of Sasines on 15th May, and accordingly, by the 4th section of the Conveyancing Act of 1874 they became entered vassals of the superiors, i.e., the city of Edinburgh. On the death of Mr Graham they became liable to a casualty, and were then called on to produce the disposition in their favour and previous titles, that a composition might be settled. This they did, and the Town Clerk, Mr Skinner, who was along with the Magistrates of Edinburgh the first party to this case, having recorded the disposition in the city chartulary, claimed from the second parties his fees for recording the same.
This Special Case was accordingly presented to the Court for the purpose of obtaining a decision which might regulate the practice of the first parties in all similar cases. The following was the question submitted for opinion and judgment:—“Have the first parties, or either of them, a legal right to record the disposition constituting the second parties' title in the chartulary of the city of Edinburgh at the expense of the second parties on the occasion of a casualty being exigible from the second parties?”
Argued for the first parties:—Prior to the changes in conveyancing began in 1858 by the 21 and 22 Vict. cap. 76, it was the practice of superiors, in granting charters or other writs renewing the vassals' rights, to record every such charter in the superior's chartulary, and to charge the expense of doing so to the vassal. Under the abridged forms of entry substituted by the Titles to Land Act 1858 (21 and 22 Vict. cap. 76), now incorporated in the Titles to Land Consolidation (Scotland) Act 1868, for charters or other writs. by progress, it was the practice of superiors to record the writ so granted, together with the disposition or other deed upon which the writ was indorsed, in their chartularies, and to charge the expense of recording such deed and indorsed writ in their account with the agent for the vassal; and the rate of charges was set forth in the Table of Fees authorised by the Society of Writers to the Signet. The chartulary is a private register, and is of the very greatest use in preserving the conditions of the original grants, and in rights of ancient date it is of consequence to have reliable copies of the charter. The right of the superior has hitherto been recognised, and since charters by progress have been abridged it has been the practice to record at the vassal's expense so much of the conveyance as was necessary to set forth the condition of the grant. It is the principle of the Act 1874 to maintain the substance of all rights although forms are abolished. Now, this right is essential for the protection of the superior, since it is impossible for him to know what encroachments may be made upon his rights by vassals in their conveyances to new vassals, and to defend himself against prescription, unless he is allowed to retain this right to call for and copy the disposition.
Argued for the second parties:—All that the previous practice amounted to was, that the superior was entitled to a copy of deeds granted by himself (Erskine ii. 5, 3). There is no authority, either in practice or in the Table of Fees referred to, for recording since the Act of 1858 the whole of the disposition on which the writ is endorsed. It is only “such part of the deed as is necessary” that the Table of Fees mentions, i.e., necessary for making the writ intelligible; but now the feudal contract is contained in the statute itself. . It is immaterial to the superior to see the terms of the disposition; by subsection 3 of section 4 his rights are not to be prejudiced by the implied entry of the vassal; and if the claim is to be made on this ground, it should be made when the vassal is infeft, not when a casualty is exigible, for that may not be for many years after the disposition, or a series of dispositions, has been granted. Such a charge as this is expressly prohibited by the 22d section of the Act, which abolishes all fees due to the superior's agent “in connection with change of ownership.” Now there can be no casualty without a change of ownership. .
At advising—
By the Act of 1874 new and radical changes were introduced. There is now no such thing as an express entry by progress—that is to say, the conveyance by an old feuar to a new one, when recorded in the Register of Sasines, operates as an entry without the necessity of going to the superior at all. That is provided by the 4th clause of the Act in its second sub-section, nor is there any necessity to intimate any such conveyance to the superior. If no intimation is made the original feuar continues liable to the superior
Page: 440↓
That being so, the superior was not entitled to a casualty at the time of the sale by Humphrey Graham to the second parties in this case. The last vassal was Mr Graham, who was entered with the superior in 1860. It is not said, but it is implied, that he was not dead in 1871, and it was only on his death that the casualty became due. The effect of the implied entry, operated by recording the disposition by Mr Graham, was to leave the superior and vassal in the same position as they stood in under the old law, except that the superior could not compel the vassal to come to him and take an entry. The question is, whether, when they came together, which they need not do till a casualty was due, the superior might say—“Allow me to record your conveyance in my chartulary, that I may know what your title is, and as that is in place of a charter from me I must be entitled to charge you with the expense of recording it.” Now, it is clear to me that this disposition by a vassal is in no sense the deed of the superior; he is not bound by any inconsistency between it and the original grant, even if he has taken the feu-duties. This deed, therefore, in which he has neither right nor interest, is not to be recorded in his chartulary. In short, the meaning of the statute is that the original grant shall always regulate the rights of the superior and vassal, and this implied entry shall not affect the superior's rights. The superior has therefore, as I have said, neither right nor interest to require that such a disposition should be recorded in his chartulary, and far less is he entitled to charge the vassal with the expense of so recording it.
The question here is not of a deed granted by a superior, but of a deed granted by some one else. It would therefore require an enactment or a new course of practice to entitle the superior to claim payment of fees for recording this deed from the vassal. The right to exact such fees appears to be founded on a practice which does not apply to the case before us, and we do not require to go far into the statute to see that this is not one of the deeds to which the practice applies. The design of passing such an Act as the Conveyancing Act of 1874 was to lessen the cost of conveying land, and if we were to sanction this demand we should be increasing, and increasing very considerably, the cost of such conveyances; because if the superior is to be entitled to have the vassal's conveyance recorded at the vassal's expense when it is brought under his notice when a casualty becomes payable, he must be entitled to have every intermediate conveyance recorded also at his vassal's expense, and these might be numerous. It is impossible to believe that the Legislature could have intended this result, for however long these conveyances or deeds of settlement might be, and however much they might contain in which the superior was interested, I do not think that there would be any right to cut and carve them. The Table of Fees approved of by the Writers to the Signet contemplates such a proceeding no doubt, but I cannot see that you could limit the superior's agent in recording such deeds, or prevent him charging for the expense of copying them at full length; that would be a most unreasonable result, and could not have been intended.
That being so, it is not necessary to go into the 22d clause of the Act, or to consider whether there is any express prohibition of such charges there or not. It is certainly against its spirit. There is another matter on which I give no opinion, viz., how far the superior's rights may be affected by such conveyances. Be that as it may, the Legislature has given him all the protection they thought he should get.
There is no longer, however, any writ from the superior, and although I do not say but that
Page: 441↓
The Court answered the question submitted to them in the negative.
Counsel for First Parties— M'Laren. Agent— William White Millar, S.S.C.
Counsel for Second Parties— Begg. Agents— Morton, Neilson, & Smart, W.S.
