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SCOTTISH_Shaw_Court_of_Session

Page: 619↓

Arnott

v.

Calder No. 193.

Court of Session

1st Division D.

March 6 1835

Ld. Cockburn.

Mrs Reid or Arnott, and Others, Pursuers.— D. F. Hope— Forsyth. John Kedder or Calder, Defender.— Keay— Whigham.

Subject_Writ—.

In a mortis causa disposition of lands, purporting to be in favour of “John Kedder, my son,” the word “John,” except the initial letter J, was written on erasures throughout the body of the deed; but in the testing clause (which appeared to have been written after the deed was signed) there was inserted the words “in favour of the said John Kedder, my son,” which were free from erasure, but no notice was taken of the erasures which existed in the body of the deed; held that the deed was invalid.

Sequel of the case reported ante, June 24, 1834 (XII. 781), which see. In a mortis causa disposition of lands by the late James Kedder of Daviesdykes, ex facie purporting to be in favour of a natural son, John Kedder, the Christian name John, with the exception of the initial letter J, was written on an erasure throughout the body of the deed. In two places the word “junior” formed part of the designation. The testing clause bore that “these presents, written upon this and the two preceding pages of stamped paper, by James Naismyth, apprentice to William Hamilton, writer in Hamilton, are subscribed by me in favour of the said John Kedder, my son, at Daviesdykes, &c. before these witnesses the said William Hamilton, David Marshall, Esq. of Neilsland, and the said James Naismyth, writer hereof.” There was no erasure in the testing clause, nor was any allusion made to the erasures in the deed.

A reduction being raised in respect of the erasures, as more fully Stated in the above report, the Court remitted the cause to the Lord Ordinary, with a finding that it was incompetent to prove, by the writer and instrumentary witnesses, that the Christian name of the disponee John, prefixed to the surname Kedder, was written upon the erasures in the body of the deed in presence of the granter, and at or before his subscribing, and that the testing clause was filled up in his presence. Parties were then heard on the validity of the deed independently of the proof thus excluded. The testing clause had apparently been filled in after signature, as it was much crowded, though an entire page remained blank behind it. But the defender alleged it to be manifest from inspection of the deed, that the testing clause was filled in by the same person who was the writer of the body of the deed, with the exception of the two last words, “writer hereof,” which were added in a different hand, apparently with the view of stating that the writer of the deed was also writer of the testing clause.

The Pursuer pleaded—

That, as the erasures in the name of the disponee were not noticed in the testing clause, there was no evidence of their having been made prior to the granter's subscription, so as to be sanctioned by him. If the testing clause was filled in before subscription, it must be presumed that the erasures did not then exist, otherwise they would have been noticed, and therefore the name of the disponee must then have been different from John, otherwise no erasure would have been made. But if the testing clause was filled in after subscription (as was evident ex facie of the deed), this might have been done out of the granter's presence, in which case the party filling it in had put in a new disponee, and then erased the body of the deed to correspond thereto. Such an operation could always be performed, and it would be highly dangerous to sustain such a deed.

The Defender pleaded—

That as the testing clause bore the deed to be subscribed in favour of “the said John Kedder, my son,” this statement, free of erasure, that the disponee was “the said” John Kedder, was equal to a notice that the name on each previous erasure was already written John, at the time when the testing clause was filled in. Even if this might have been after signature, it was quite common in practice to execute a deed in that manner; and, if any fraud had been intended, and such testing clause had been filled up without the granter's sanction, it could still have made full notice of the previous erasures. But it was apparent, on inspection, that the testing clause was written by the writer of the deed, except the last two words, “writer hereof,” which were superfluous where the same person wrote the whole deed; and these two words had been added afterwards, ex superabundant!, which alone encroached on the granter's signature. In the case of Adam, June 12, 1810, F. C., an erasure which occurred in a crown charter of confirmation of a sasine, in that part which stated the year in which the sasine had been recorded, was held by the Court, in the circumstances of the case, not to vitiate the confirmation. Lord President Blair there stated,—“That in cases of such vitiation with a fraudulent intention, he should hold that the whole deed was void; but, that he did not think there was any ground for presuming fraudulent intention in this case. That, certainly, what had been done was improper;—it was highly improper to make any alteration on a charter after it had been sealed or subscribed; yet still that was not absolutely demonstrative of fraudulent intention; and here it was very strongly proved that there could not be any such intention; that, therefore, the deed was not void in toto. But faith must be denied to it, in so far as it is vitiated, i. e. the word written on the erasure must be disregarded.” On this authority the defender contended, that, at worst, the words on the erasures could only be held pro non scripto, and there was still left, in the body of the deed, the designation—“J—Kedder, my son,” which was consistent with the fuller designation of the testing clause, and sufficiently supported by it.

The Lord Ordinary found “that the deed of 6th October, 1810, sought to be reduced, is invalid, and therefore reduced the same, as also the in strument of sasine following thereon, and decerned: and found the pursuers entitled to the expenses incurred by them in discussing the reductive conclusions.” ^*

_________________ Footnote _________________

^* “ Note.—The summons contains conclusions for removing, and for past profits. It is in reference to these that the Lord Ordinary has appointed the parties to be beard, as these matters have not yet been discussed, and could scarcely be so, till the validity of the deed should be finally determined.

“As to the reduction, the Court having decided that the evidence which Lord Moncreiff had directed to be received is inadmissible, the deed must be considered strictly by itself, and no regard can be paid to the moral probabilities urged on either side. Now, it is admitted that the word John is written upon erasures, except where it occurs in the testing clause, and that the erased word was James. This erasure occurs in the most important part of the deed, the name of the disponee, and is in every part where this name is; and the sole question is, Whether the objection, arising from the vitiation, has been legally removed by the testing clause?

“This clause declares, that ‘these presents’ are subscribed by the ‘granter in favour of the said John Kedder, my son,’ and the specification of John in this clause is said by the defender to be a sufficient legal correction of the error, and of the vitiation in the body of the instrument, especially as a Christian name was not necessary, and as the deed contains words (such as, ‘residing at Kirkhall, my son’) which adequately denote the person meant.

“But here the granter, whether necessarily or not, chose to designate his disponee by the Christian name, and has thus made the word essential, Now the testing clause is not only inadequate, but, in reference to the legal precedent, it is dangerous, as a substitute for the original use of the right name, or as a correction of this essential erasure. Because, so far as appears from the deed, there is not enough to exclude the supposition that James may have been the person truly meant, that this word may have been erased, and John put in after signature, and that the testing clause may have been made to suit the instrument thus altered; and, as testing clauses are generally filled in after subscription, this may often be done. There is said to be a legal presumption, that testing clauses are written before subscription. But any such presumption must be controlled by the circumstances appearing on the instrument. Now the two last words of this testing clause, viz. ‘writer hereof,’ though they were superfluous, have evidently been added after the granter's signature, and by a different hand. But, Independently of this, the very mode in which the alleged error has been attempted to be corrected, seems inconsistent with the idea that it was discovered prior to subscription; because, if it had been known, it is scarcely credible that it would not have been corrected fully and directly, and by express words, especially as there was a whole page left clear, instead of merely slipping in the word John, without even noticing any erasure. But, assuming the clause to have been written before the granter signed, it does not follow, from any thing it contains, that the word James had been previously erased. Even ‘the said John,’ which is what the defender relies on, does not establish that there was such a name in the deed at any time; for, that word being on an erasure, is, in law, not there at all.

“There are cases where a slighter defect has proved fatal; but none where one so strong has been disregarded. The subsequent filling in of testing clauses being legal and usual, it is impossible not to see the consequences of allowing one name to be changed for another, by erasing the one first inserted, and then, with out openly noticing this, putting a new name to fit it into the testing clause.”

Lord Balgray.—I think there are too many unnoticed erasures on the most important parts of this deed to warrant the Court in sustaining it. Among other things, I observe that the appointment of an executor stands just now in favour of John Kedder, junior.

Keay for Defender.—It is admitted on all hands that the Christian name in the body of the deed was originally James, which was also the name of the granter. It was therefore at first written James Kedder, junior, and the instance of erasure now referred to is one in which the word junior had not been erased at the time of altering the Christian name into John.

Lord President.—I apprehend the origin of the whole evil to have been a desire to avoid the purchase of a new sheet of stamped paper. But the consequence has been that the deed is invalidated, as I do not think the testing clause adequately conceived to authenticate the deed. In regard to the opinion of Lord President Blair, in Adam's case, I feel at a loss to understand what his Lordship meant there to consider the sort of alteration with a fraudulent intent which alone should void a deed, and what degree of latitude of enquiry as to this, his Lordship would have allowed. I cannot adopt that part of his Lordship's opinion.

Lord Mackenzie.—I remember distinctly that Lord President Blair did express the opinion ascribed to him in the report, and all the bar thought it wrong at the time.

Lord Gillies.—But even that doctrine, if well founded, would not aid the defences in this case. Suppose that a word on an untested erasure is merely to be held pro non scripto, where there is no fraudulent intent, and that the defender gets all the benefit of this, it would just render the whole body of this deed blank in the name of the disponee. It would be a deed without any disponee, until the testing clause occurs, the proper object of which clause is merely to authenticate the deed, already done. The name of John Kedder occurs only in the testing clause. Is it possible, then, for the Court to sustain the single word in that testing clause—“the said John Kedder,” as sufficient to make a valid disposition, to the exclusion of the heir at-law? I cannot give it such effect, and I am for adhering, on the merits, to the interlocutor of the Lord Ordinary.

Lord Mackenzie.—My opinion is the same. I think the body of the deed should be read as if it still stood conceived in favour of James, or some other person; and if it were in that condition, and the defender offered a parole proof that James did not live at Kirkhall, and that John alone did work and rendered services to the granter, could such a proof be received to the effect of supplying a disponee to the deed? I think such a doctrine altogether extravagant. But it is said that the testing clause is sufficient to render the deed valid, and there are two views on which it may be contended that this is the result. In the first view it is maintained that the testing clause is substantially a declaration by the granter, that, however his deed was drawn, it was signed in favour of John. If I held a testing clause to be entirely the same as the body of the deed, a question might be raised according to the view now under consideration. Suppose that a man draws a deed in favour of James, and then, before the testing clause, he inserts a distinct declaratory clause, that his intention was altered, and that he signed in favour of John, perhaps I might think even these words too weak to make a valid conveyance to John, But even if such a deed could be sustained in John's favour, it is Very different from the deed before the Court. The alteration here relied on by the defender occurs In the testing clause itself, and the practice in regard to that clause is notoriously different from what it is as to the rest of the deed. That clause may he left blank when the deed is signed, and yet, being duly filled up afterwards, the deed will be valid. That clause may he drawn by a different writer from the writer of the deed, and yet the deed will not be thereby invalidated. And there is one decided case, which points out so clearly the peculiar light in which a testing clause is viewed, that it is unnecessary to insist farther on that circumstance after adverting to it. I allude to a question between the Bank of Scotland and the Creditors of Telfer, ¹ in which a bond to the bank, being subscribed by the granter, Telfer, and witnesses, was transmitted to the secretary of the bank, by whom it had been written, and who filled in the testing clause, but erroneously stated one of the witnesses to be named Gibson, whose subscription was Dickson. After the bond lay in this state for some years, but before it was produced in judgment, the error was discovered, and the secretary then made an addition to the testing clause, setting forth the clerical error, and correcting it. In a bill of suspension by the creditors of Telfer after his bankruptcy, the Court unanimously refused the bill, notwithstanding the alteration which had thus been made on the testing clause, as it originally stood.

Now, could the writer of a deed thus tamper with the body of the deed itself? It cannot be held so, and it is plain that in practice there is a substantial and marked distinction between the testing clause and the rest of the deed. I have great doubt, therefore, in allowing that clause, in itself, to operate any change in any part of the deed, or to control the deed which it is used merely to attest. If any part of a deed may thus be changed, the whole of it may equally be so. The change in this instance being in the name of the disponee, occurs in one of the most vital parts of the deed: it alters the deed essentially. If such alteration could thus be effectually made, the whole previous deed might as well be blank. And I cannot assume the testing clause to have been written in this instance before the deed was signed, as that would just he assuming what is essential to the validity of the deed, and what is in no degree supported by evidence.

But there is another view and a more difficult one, which is taken in regard to the effect of the testing clause; and it is that which was originally taken by Lord Moncreiff. It is said, that the testing clause may be so read as actually to amount to a notice and correction of all the preceding erasures, and that thus the body of the deed is made apt and valid, the attested erasures being equally good with the unerased portions of the deed. This result is arrived at by founding especially on the word “said,” in that branch of the testing clause bearing the deed to be signed in favour of “the said John Kedder.” As John Kedder is not named in any previous part of the deed, unless by reading the word John, now standing on the erasures, it is maintained that this is substantially a declaration that the word, John, is that which was finally written upon the erasures, and accordingly that these erasures are duly noticed in the testing clause. I think this view is stronger for the defender than the previous one; but I do not feel satisfied with it. There is not enough to certiorate the Court that the name, John, stood on the erasures, before the deed was signed, just as it stands now. I do not think it amounts to an explicit correction of the erasures; and even if it did, I am doubtful whether a correction of this sort can be effectually made in the testing clause.

_________________ Footnote _________________

¹ Feb. 17, 1790 (16909).

The Court adhered on the merits, but altered as to expenses, and found them due to neither party.

Solicitors: D. Fisher, S.S.C.— R. Welsh, S.S.C.—Agents.

SS 13 SS 619 1835