A disposition mortis causa reduced on account of a vitiation in its date,
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In 1777, John Howie executed two separate dispositions, by which he conveyed one-half of the lands of Malside to John Howie, his nephew, but who was not his heir-as-law; and the other half to James Merry, a distant relation by affinity. The disponer reserved the liferent of the whole to himself, and to Mary Smith his wife.
The disposition is favour of James Merry, was deposited by Mary Smith in the hands of David Cochrane.
On the 6th January 1785, John Howie senior executed a new settlement, by which, without formally revoking the two former dispositions, be conveyed the whole lands of Malside, after his own and his wife's death, in favour of John Howie, the former disponed of one half of them.
John Howie senior died on the 8th January,1785, two days after the execution of this deed.
A considerable time after his death, his widow got back from David Cochrane the disposition in favour of James Merry, which she probably destroyed, as it never afterward appeared.
She also, soon after her husband's death, renounced her liferent right; and John Howie junior, in virtue of the disposition 1785, entered into possession of the lands, continued it for several years, and was infeft in 1790.
It was discovered, however, that the date of this disposition bad, by means of an erasure, been altered in a different hand-writing, from 6th January 1785 to 6th November 1784. At what time this vitiation was made did not very clearly appear; neither was it distinctly established by whom it was made, or whether John Howie junior had had any participation in the fraud; but there were strong grounds for suspecting, that it had been suggested and carried into execution by the notary whom Howie had employed; to infeft him on the disposition, and who was a person of infamous, character. It was also fully made out that Howie thought the deed 1785 challengeable on the head of death-bed, not being aware, that the heir's right of challenge was excluded by the two former dispositions. And this made it not improbable, that the vitiation had been made for the purpose of eluding that objection.
On the supposition that this disposition was void, James Merry, in virtue of the disposition 1777 in his favour, which had never been revoked, was entitled to one half of the lands; and having learned the circumstances above detailed, he resolved to institute a reduction of the disposition 1785, both on the ground of the vitiation, and of the granter's having been in a state of complete mental imbecility when it was granted.
After obtaining a decree proving the tenor of the disposition 1777 in his favour, he accordingly instituted the reduction; but not having been so successful as he expected in establishing the granter's imbecility, he rested his plea on the vitiation of the date of the disposition, contending, that the date being an essential part of the deed, an ex post facto alteration of it, especially if it could not be traced to any innocent cause, must be fatal to the settlement; 1429, C. 113, and Mackenzie's Observations on it; Balfour's Practics, p. 368. § 36. 382. C. 5. and 384. § 19. Stair, B. 4. Tit. 42. $ 19. Ersk. B. 3. Tit. 2. $ 20. 29th March 1626, Keith, No. 20. p. 12271. 10th February 1636, Edmiston, No. 344. p. 17062; 22d November 1671, Pitillo, No. 24. p. 12281; 1st July 1796, Murchie, No. 55. p. 1458; 4 Termly Reports, p. 430. Master versus Millar.
The defender, on the other hand, contended,
1st, A date is not essential to a conveyance of heritage; Stair, B. 2. Tit. 3. § 14. and 16. B. 3. Tit. 2. § 3. Bankton, B. 3. Tit. 4. § 2. and 4. Erskine, B. 2. Tit. 2. § 18. Ross on Conveyancing, voce Testing clause; 21st July 1711, Ogilvy, No. 123. p. 16896; Blackstone, vol. 2. pp. 295. 304. 308. 381. and 502. And it is only where the alteration is made on a material part of the deed, that it is rendered void; Stair, B. 4. Tit. 42. § 19. 11th December 1621, Hamilton, No. 157. p. 16925; 4th December 1629, Winrham, No. 172. p. 6749; 14th December 1627, Hepburn, No. 23. p. 12273; 11th March 1753, Durie, No. 175. p. 16936; 5th March 1760, Lockhart, No. 176. p. 16939; “Coke's Reports, p. 66. Goddard's Case, p. 825. H. Pigot's Case; Bacon's Abridgment vol. 5. p. 159. vol. 7. pp. 299. 306, 307, 308, 309, 310. 340. 342. 349.
2dly, At any rate, as the words of the date, ‘Seventeen hundred and eighty ,’ remain entire and unvitiated; the deed in favour of the defender must have been posterior, and so preferable to the disposition 1777, founded on by the pursuer.
Lastly, There is every reason to suppose that the date was not vitiated at the time of the granter's death, and there is no ground for suspecting, far less any evidence, that the vitiation was done by the defender, or with his privity; and to annul the deed under these circumstances, would not only be attended with much hardship to the defender, but might also open a door on other occasions to very gross frauds. Persons in the pursuer's situation might be tempted, either by themselves or their agents, to get hold of deeds to their prejudice, and vitiate them, for the very purpose of getting them afterward set aside.
After a hearing in presence, the Lords thinking the vitiation of the date an insuperable objection to the deed, “sustained the reasons of reduction”.
A reclaiming petition for the defender was refused, without answer, 27th February;) and a second reclaiming petition was (15th May 1801) refused as incompetent.
Lord Ordinary, Armadale.Act. Solicitor-General Blair, W. Erskine.Alt. H. Erskine, Haggart.Clerk, Colquhoun.
Fac. Coll (App.) No. 13. p. 26.
*** This judgment was appealed, The House of Lords, (17th March 1806,) Ordered and Adjudged, That the appeal be dismissed, and the interlocutors complained of be affirmed.
