Scottish Court of Session Decisions

IN the action of reduction mentioned ante, XIII., 1063, the parties, instead of going before a jury, agreed upon the following state of the facts, with reference to the plea in law as to the validity of the deeds under reduction:—

“1. That the late John Reid, at the dates of the deed and codicils in question, could subscribe his name, and was in the practice of subscribing it to writings requiring his signature.

“2. That the said John Reid was, at the dates aforesaid, not totally blind, but that his sight was so defective, that he could not read any written document, nor decipher the signature attached to it, although able, at the time of his own subscription, to infer from general appearances that he had affixed it, but not by his mere vision to decipher the same afterwards.”

The question was, whether, under these circumstances, the granter was bound himself to have subscribed his name to the deeds, or whether the notarial subscription adhibited was sufficient?

Pleaded for the pursuer—

The mode of executing deeds is entirely regulated by statutory enactment, and the matter now in dispute is to be determined exclusively by reference to the terms of the Acts 1540, c. 117, and 1579, c. 80, which imperatively require the subscription to be by the party himself, if he can subscribe. And a person will be considered as one who can subscribe, who is so according to the ordinary meaning of the words, and the common sense of the thing. The execution by notaries is an exception to the general rule of the statutes, introduced only in case of necessity, and to be confined within narrow limits, as being opposed to their general purview and scope. Their object was to secure a deed from being passed upon the world as a man's own deed which had never been executed or intended to be executed by him, and particularly to guard against fabrications by notaries; ¹ a deed being liable to such fabrication not merely through the fraud of notaries, but even through the instrumentality of notaries of integrity, as in executions by notaries the reading over the deed is not a necessary solemnity. ²The operation of the statutory rule is illustrated by the doctrine in regard to subscription by initials, the law being settled, that where a party, not able to write his name at length, is in use to subscribe by initials, this is the only valid method of authenticating deeds on his part. The case of Lord Fife went to show, that in such circumstances as the present the signature of the granter was “the proper signature to give effect to the instrument,” and that he was not only entitled but bound so to execute his deeds, ³ there being no warrant in the statutes for the assumption that the same person may have two modes of execution, either by his own hand or by notaries. Moreover, looking to the principles on which the form and solemnities of notarial subscription are regulated, the executions in the present case are invalid, the notaries' doquets not setting forth in express words, as required by the statutes, the granter's “inability to subscribe,” which is the ground and warrant of notarial execution. ⁴

Pleaded for the defenders—

The legal question now arising is, whether it was lawful and competent for a party in that state and degree of blindness in which the granter is admitted to have been, to execute such deeds as those under reduction by means of notaries, the question being thus essentially different from that which occurred in the case of Lord Fife. The argument on the other side, if good for any thing, must go this length,—that every deed executed by notaries, although regularly executed, and ex facie probative, and although nowise impeachable on any ground of its being discordant with the intention of the granter, or of its having been executed without sufficient authority from him to the notaries, may yet be reduced

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¹See Craig, II., 4, 13, and II., 6, 5.

² Yorkston v. Grieve, Dec. 2, 1794, M. 16, 856; Stoddart v. Arkley, Dec. 18, 1799, M. 16, 857; Tait, p. 76.

³ Shaw's App. Cases, 498. See also Coutts v. Straiton, June 21, 1681, M. 6842.

⁴ Birrel v. Moffat, June 18, 1745, M. 16846; also Williamson (16,828); Mackenzie, ibid; Elliots, ibid.

and set aside upon pure technicality, provided merely it can be shown that, at the date of execution, the granter could, by possibility, have written his name. There is no vestige of authority for this doctrine, which, if it were to receive countenance, would open a door to a widespread challenge of notarial deeds, which would altogether unsettle the security of such instruments. It is not, therefore, the mere capacity of signing, or the party being in an equivocal condition as to his possessing such capacity, which makes it incumbent on him to subscribe his own name. ¹The position maintained by the defenders, that notarial execution was, under the circumstances, competent and proper, is supported by direct authority. ²From all which it seems to follow, that although Reid might have subscribed the writings in question with his own hand, yet he has validly and competently done so by means of notaries. This was the case of a person who might either say he could or he could not write. Just so is the case of a blind person. He may validly execute a deed by his own subscription, if that subscription be ex facie probative, and if there be no proof of his having taken too much assistance in order to enable him to make it. But he may also distrust his ability, and may fear to rely upon a subscription which he cannot himself read. He may not be willing to take the evidence of others that it is such a subscription, and so adhibited as to leave no possibility of after challenge. And if this be his state of mind and his own conviction as to the doubtful extent of his ability and capacity to subscribe, it cannot be maintained that the law compels him, and that too under pain of nullity, to run the hazard of such a subscription. He is entitled to say he cannot write, because he cannot write as other people do, and with those safeguards which others possess in the full use and direct evidence of their own senses. Even where a party, who possesses the undoubted power of subscription to the full extent with other persons in the entire possession of all their senses, takes upon him to declare his inability to write in the presence of notaries, and thereby to get these notaries to subscribe for him, it does not follow that the deed so executed is in every instance to fall to the ground, upon a mere proof subsequently led that he could have written if he pleased. There are various instances in the books, in which the party subscribing and those who represented him were held barred from raising any such challenge, while in other instances the challenge was repelled, “unless the party would also refuse (upon reference to oath), that he gave authority to the notaries to subscribe for him.” ³ But in the present

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¹ Crosbie v. Picken, Nov. 30, 1749, M. 16,814; Merry v. Dun, Nov. 21, 1835, ante XIV., 30, and F.C.

² Ross, 158; Falconer v. Arbuthnot, Jan. 9,1751; Kilkerran, p. 616; Ross v. Aglionby, June 1792 (F.C.); Grant v. M'Pherson, June 23, 1812 (F.C.); Opinions of Court of Session in Lord Fife's case, Nov. 30, 1819 (F.C.)

³ Littlejohn v. Hepburn, Dec. 8, 1806 (16,828); Veitcu v. Horsburgh, Jan. 31, 1637 (16,834).

case, it is not alleged that the deeds notarially executed by Reid were not so executed by his full authority, the notarial doquet indeed bearing that they were so executed “at the special request of the within-designed John Reid,” and on the express ground of his “being desirous to execute the foregoing deed in a valid form, so as to exclude challenges on the head of blindness or defect of sight.”

The Lord Ordinary having reported the cause to the Court, it was this day put out for advising.