Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 PRESUMPTION - WRIT - REGISTRATION.
Subject_3 Registration of a Deed found to be equivalent to delivery, with regard to heritage, but not as to moveables.

Elizabeth Leckie
v.
Agnes and Janet Leckie

Date: 22 November 1776

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[Faculty Collection, VII. 300; Dict., App. I.; Presumption, No. 1.]

Gardenston. If a deed appears in the register, the presumption is, that it was registered by the authority of the granter: The proof to the contrary lies on the person objecting.

Covington. In common cases, the putting on the register is equivalent to delivery; but I observe, from the circumstances of the case, that the father did not at first mean to put the deed upon record: besides, he afterwards granted a bond to the same disponee, exceeding the value of the subject, which implies that he still supposed the subject to be at his disposal, notwithstanding the registration.

Hailes. The reason for granting that bond was quite different: a doubt had arisen, whether old Leckie was the fiar, although he had an unlimited right of burden. To secure matters against this question, Leckie exercised that power of burdening which he undoubtedly had, that so his disponee might be secured, in the one way, in the subject, and, in the other, in its value.

Kaimes. I should relish Lord Covington's doctrine, if it could be confined to the present case, for the second deed is more rational than the first: the registration was by order of old Leckie, and it is the most formal of all deliveries.

Kennet. The settlement 1771 was the ultima voluntas, and rational; which the settlement 1767 was not; but we are not at liberty to support the deed on that account. The only question is as to the evidence of delivery.

On the 22d November 1776, “The Lords found that the deed 1767 was a deed properly delivered, and therefore sustained the reasons of reduction as to the heritage, and remitted the other points to the Ordinary;” adhering to Lord Monboddo's interlocutor.

Act. Ilay Campbell. Alt. G. Wallace.