Scottish Court of Session Decisions

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 is produced, the question, whether it is liable to any objection of nullity, must altogether depend on the nature and condition of the deed itself.

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.