Scottish Court of Session Decisions

John Smyth, dealer in Glasgow, brought an action against Patrick Smyth, his brother, plasterer there, for the purpose of reducing a certain assignation, which bore to be granted by a deceased brother, Francis Smyth, in favour of the defender. By this assignation there was conveyed to the defender a certain debt, set forth as due by the pursuer to the deceased.

The pursuer alleged that this assignation bore to be granted by the said deceased Francis Smyth, and to be subscribed by him at Glasgow, the 1st day of June 1874, before Bernard Gallagher, laster, residing at No. 18 South Wellington Street, Glasgow, and Robert Gallagher, tailor, residing at No. 108 of the same street; but that it was deficient in the statutory solemnities of execution, in respect that the alleged witnesses neither saw the alleged granter sign nor heard him acknowledge his signature.

A proof was led, in the course of which the Gallaghers stated that they had signed the deed

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without either seeing Francis Smyth sign or hearing him acknowledge his signature. The defender led evidence for the purpose of proving that Francis Smyth had actually signed, but it was admitted that his signature was not on the deed when the Gallaghers adhibited theirs.

The Lord Ordinary pronounced the following interlocutor:—

“ Edinburgh, 22 d October 1875.—The Lord Ordinary, having taken the proof and heard the counsel for the parties, and considered the closed record and whole process, Finds, in point of fact, (1) That the assignation No. 7 of process, sought to be reduced bears to be subscribed by the deceased Francis Smyth, as granter, and to be attested by Bernard Gallagher and Robert Gallagher as instrumentary witnesses; (2) That the said assignation was subscribed by the said Bernard Gallagher and Robert Gallagher; (3) That it was so subscribed by them outwith the presence of the said Francis Smyth; (4) That at the time of their said subscription, the assignation had not been subscribed by the said Francis Smyth, the alleged granter; (5) That the said Bernard and Robert Gallagher did not see the said Francis Smyth subscribe the said assignation; and (6) That the said Francis Smyth did not at the time of the said Bernard and Robert Gallagher subscribing the said assignation, or at any other time, acknowledge his subscription: Finds, in point of law, that the said assignation is null and void: Therefore repels the defences, and reduces, decerns, and declares in terms of the conclusions of the summons: Finds the defender liable to the pursuer in expenses: Appoints an account thereof to be lodged, and when lodged, remits the same to the Auditor of Court to tax and to report. .

Note.—In this action an important question is raised as to the import and effect of the 39th section of the Conveyancing and Land Transfer (Scotland) Act 1874, declaring deeds not to be invalid because improbative.

[ His Lordship then proceeded to narrate the facts. ]

In this state of facts the assignation, unless it can be aided by the provisions of the recent Conveyancing Act, is plainly null and void, under the various earlier statutes relating to the execution and testing of deeds, as these have been interpreted by numerous decisions. See particularly Young v. Ritchie, 2d February 1761, M. 17,047; Allan v. M'Kean, 21st December 1803, Hume 914; and Earl of Fife's Trustees v. Duff, 22d December 1825, 4 Sh. 340.

The defender, however, maintains that the law which had thus been settled has been entirely altered by the 39th section of the recent Conveyancing Act 1874, which is in the following terms:—‘39. No deed, instrument, or writing subscribed by the granter or maker thereof, and bearing to be attested by two witnesses subscribing, and whether relating to land or not, shall be deemed invalid, or denied effect according to its legal import, because of any informality of execution; but the burden of proving that such deed, instrument, or writing so attested was subscribed by the granter or maker thereof, and by the witnesses by whom such deed, instrument, or writing bears to be attested, shall lie upon the party using or upholding the same, and such proof may be led in any action or proceeding in which such deed, instrument, or writing is founded on or objected to, or in a special application to the Court of Session, or to the Sheriff within whose jurisdiction the defender in any such application resides, to have it declared that such deed, instrument, or writing was subscribed by such granter or maker, and witnesses.’

The defender admits that, by the proof which the pursuer has led, the onus of establishing the validity of the deed is shifted from the pursuer to himself; but he maintains, that if he can prove that the deed was, in point of fact, subscribed by the person bearing to be the granter, and by the persons bearing to be the attesting witnesses—whether the subscription of the granter was made or acknowledged in their presence or not—he must prevail under the provisions of the recent Act above quoted. And in the course of the proof he examined himself, his wife, and his wife's aunt, in order to prove that the deceased Francis Smyth did in point of fact sign the deed after the so-called witnesses had signed it; but they failed, and indeed did not attempt, to prove the subscription was either made or acknowledged in the presence of the Gallaghers.

I am of opinion that the construction which the defender seeks to put upon the Act of 1874 is wholly untenable. I do not think that the Legislature intended to dispense, or have by the statute in question dispensed, with the presence of witnesses as a solemnity at the execution of deeds, or that they have repealed the clause of the Act 1681, c. 5, which declared that none but the subscribing witnesses should be probative of the execution of writs, and, inter alia, of ‘assignations.’ It is indeed most obvious that unless the persons who bear to attest a deed see the granter subscribe, or hear him acknowledge his subscription, they are not ‘witnesses.’ Their presence is required to enable them to attest the fact that the granter subscribed the deed, and they cannot legally attest as a fact an act which they did not see the alleged actor perform or hear him acknowledge. Whatever may have been the intention of the Legislature in enacting the 29th clause of the recent statute, it appears to me to be clear that that enactment has not subverted the former law and practice, which required the subscription of the granter of a deed to be attested by subscribing witnesses, who either saw the granter sign the deed or heard him acknowledge his subscription. And as it is clearly proved that the persons Bernard and Robert Gallagher, who bear to be attesting witnesses of the execution of the assignation sought to be reduced, were not in point of fact ‘witnesses,’ in any sense of the word, to the alleged subscription of the granter, it follows that the assignation must be reduced as null and void.”

The defender reclaimed.

Argued for him—Under the recent Conveyancing Act it is sufficient to prove that the signatures are genuine. Here there is no fraud. The assignation was, in point of fact, granted by Smyth, and this is all that the defender requires to prove

The Counsel for the respondent was not called upon.

At advising—