Scottish Court of Session Decisions

Lord Ardmillan—The question here raised is one of great importance, though probably of rare occurrence. I shall not again repeat what has been already so well explained, but shall merely say in a word that I do not think that the objection here taken is really an objection of statutory nullity. It appears to me that the Statute 1579, cap. 80, is satisfied, if the writ was subscribed for each party by two notaries before four witnesses duly denominated. This was, I think, done in the present case. The names of James Græme and Catherine Græme are not subscribed to this writing by themselves, in consequence of James' defect of sight, and Catherine's inability from paralysis, but the deed is signed by two notaries, who attest that on the mandate of each they signed for each in presence of four witnesses subscribing. This attestation is to be credited in respect of their official position as notaries. This, I think, satisfies the requirements of the statute, which does not bear that the notaries who subscribe for one of the parties shall be different from the notaries who subscribe for the other. If there had never been a decision on the subject, I do not think that we could now, as matter of construction, enforce as a statutory nullity the want of separate notaries and separate witnesses for each of the parties subscribing.

In the case of Craig v. Richardson, 27th June 1610, briefly reported in Morrison 16,829, the decision does not appear to me to involve necessarily the view that the writ was void in respect of statutory nullity. It may rest, and I think does rest, rather on a principle of common law, that in a contract, the parties contracting should be separately represented, and that one notary, or, as in this case, two notaries, shall not subscribe for both parties, since, in a contract their interests are viewed as adverse. The decision so understood is quite intelligible, and in accordance with the practice of the court to protect persons defenceless from their years or their infirmities; and, so viewing the decision, I am not disposed to disturb it, nor do we disturb it by repelling the objection in the present case. We have here a mutual settlement by two aged persons, brother and sister, with a clause reserving power to both and each of them, and to the longest liver of them, to alter and cancel the same in whole or in part. This deed is in my opinion testamentary, ambulatory, revocable, and not a contract. It is not so in words, and there are no counterpart obligation. It is true, however, that a deed may possess to some effects the character of a contract in respect of its mutuality, even though there be no words of contract therein. Such an effect was given to the mutuality of a deed in the case of Campbell v. Campbell's Trustees, 1 Macpherson 647, where a mutual settlement, though testamentary quoad the beneficiaries, was considered pactional quoad the granters. But the contract which may thus arise from the mutuality of the deed is just a contract not to alter or revoke it. That is the only contract implied in its mutuality. The power to revoke a testamentary deed is in such a case excluded by the contract implied from its mutuality. But here that implied exclusion of power to revoke is met by express reservation of the power, reservation not only to each of the parties, but to the survivor, and thus the only contract which can be implied from the mutuality of testamentary writings is shut out by express words. There is no contract here. I take the case put by the Lord Ordinary. Suppose that there had been two other by Catherine Græme, to the same effect as in separate writings, the one by James Græme, and the this mutual deed. It is plain that if each writing was signed by two notaries and four witnesses, the requirements of the statute would be fulfilled, and the fact that the notaries and the witnesses were the same in both writings would have created no statutory nullity. If, however, the writings were relative, and were executed unico contextu as mutual and counterpart settlements, it may well be that the power to revoke, which is incident to testamentary writings would be held excluded by the mutuality. A contract not to revoke would be accordingly implied; and in respect of the character of contract thus given to the mutual settlement, it may even be that the principle of the decision in Craig v. Richardson might apply, and the Court might be of opinion that the same notaries ought not to subscribe for both parties.

Here there is no other contract but that which may be implied from mutuality; the contract implied from mutuality is simply a contract not to alter or revoke; no contract can be implied where the contrary has been expressed; the power to alter or revoke is here expressly reserved to both parties and to the survivor; and the contract not to alter or revoke, which might otherwise have been implied, is excluded. Therefore there is no contract here; and as there is no statutory nullity, the objection stated in the first two pleas for the pursuer has been rightly repelled.

Another part of the case remains for investigation, and it may be that the fact on which this objection is founded may there be of some importance. On that point it would be premature now to offer any opinion.