Scottish Court of Session Decisions

The first parties to this Special Case were the trustees under the last will and settlement and relative codicil, both dated 20th October 1876, duly executed by the late Mrs Mary Ann Grant or Tener, who resided in Dundee. It was a general settlement of all Mrs Tener's estate, heritable and moveable. Mrs Tener had previously been desirous to benefit the Church of Christian Disciples at Dundee, of which she was a member, and she had erected at her own cost a building named Salem Chapel, in which religious worship was conducted. The title of this chapel remained at first in herself, but afterwards she became desirous of giving a permanent right to the chapel to the religious sect just mentioned, and she got the aid of her husband Mr Tener in putting her wishes and intentions into writing, without seeking or obtaining any advice or assistance from a professional conveyancer. The result was the framing and engrossing by Mr Tener, in accordance with Mrs Tener's instructions, and the subsequent execution by her, of a document, upon paper bearing a 15s. stamp, which was styled at its outset—An indenture, made the 24th day of October 1876, between Mrs Tener of the one part, and Gilbert Young Tickle, James Marsden, John Aitken, William Linn, and John Selbie, as trustees for the purposes therein set forth, of the second part. These trustees were the second parties to this Special Case. The indenture contained an obligation that a certain amount of yearly feu-duty should be paid on behalf of the chapel. This duty was described “as a yearly rent or sum of 10s. sterling,” payable by the trustees to Mrs Tener and her heirs and assignees.

The following statement is taken from the case:—“Mrs Tener died at Dundee on 3d November 1876. At the time of Mrs Tener's death her signature to the said indenture bore to be attested by only one subscribing witness, thus—‘Signed, sealed, and delivered by the above-named Mary Ann Grant Tener, in presence of’ (Signed) ‘James Allan, T.C., Dundee’—this witness being James Allan, one of the members of the Town Council of the royal burgh of Dundee, and one of the first parties hereto, and the capital letters appended to his subscription were the initial letters of the words ‘Town Councillor.’ Although Mr Allan alone subscribed as a witness to Mrs Tener's signature, Mr Tener, her husband, was also present when she signed the said indenture or deed of trust, and saw her subscribe it; but he, not thinking that more than one attesting witness was necessary, did not then subscribe as a witness. Before the document was signed by Mrs Tener it was read over to her by Mr Tener in the presence and hearing of the said James Allan, and it was thereafter taken by her into her own hands, and again read over by herself, and after she had expressed her approval it was signed by her as above mentioned. As her intention was that it should receive effect in her own lifetime, she, after it was signed and attested by Mr Allan as before stated, committed it in Mr Allan's presence to the care of Mr Tener, with instructions to get it forwarded to the trustees therein appointed. Accordingly, Mr Tener, on the following day—25th October 1876—wrote with it to Mr Tickle, who thereafter subscribed

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it at Liverpool. By him it was forwarded to Mr Marsden, by whom it was also subscribed at Wigan, and who thereafter transmitted it to Mr Linn for the purpose of his subscribing it. Mrs Tener's death, however, having occurred, as already mentioned, on 3d November 1876, before Mr Linn had affixed his signature, any further subscription of the document was meanwhile suspended, and the above-mentioned signatures of Mr Tickle and Mr Marsden were made before only one subscribing witness to each of their respective signatures. Thus, as at the date of Mrs Tener's death the deed was signed and sealed only by herself and two of the trustees, each before one subscribing witness only.

“After Mrs Tener's death her husband Mr Tener being anxious to give effect to his wife's intentions, took advice, and under that advice James Allan added to his signature the words and perfumer, Dundee, witness,’ and also wrote on the margin, with a caret after the letters ‘T. C.,’ the words ‘Town Councillor.’ By the same advice Mr Tener added, beneath the signature of Mr Allan, the words and subscription, ‘and of Jno. K. Tener, late of Moree, county of Tyrone, Ireland, now residing at Salem Villas, Dundee, witness.’ Following the same advice, the three trustees whose signatures had not been obtained before Mrs Tener's death, viz., Mr Aitken at Edinburgh, Mr Linn at Glasgow, and Mr Selbie at Dundee, signed and sealed the indenture before two subscribing witnesses. A second witness also subscribed to each of the signatures of Mr Tickle and Mr Marsden, upon acknowledgment by these gentlemen of their respective subscriptions. Subsequently, in January 1879, both witnesses being present, Mr Tickle acknowledged his signature to them, and they again there and then subscribed as attesting witnesses. Likewise, in January 1879, both witnesses being present, Mr Marsden acknowledged his signature to them, and they again there and then subscribed as attesting witnesses.”

In these circumstances a question arose between the parties to this case as to the validity of the indenture or deed of trust. The second parties maintained that it was a deed valid and eifectual as a conveyance, or at least as an obligation to convey, and that the first parties were bound in consequence of it to grant to the second parties a formal conveyance of the subjects therein mentioned. The first parties admitted that Mrs Tener intended the deed to be effectual when it was subscribed by her, but maintained that it was not habile and sufficient as a conveyance to dispone or confer any right in the subjects, nor to constitute an obligation on them as Mrs Tener's representatives to grant a conveyance or any right to the subjects; that, being drawn up in the form of an indenture or mutual contract, it was invalid by reason of its not being executed by all the parties thereto until after Mrs Tener's death; and that, in any event, the document being at Mrs Tener's death imperfect and invalid, the subsequent additions and alterations, as regards the subscription of witnesses as well as of parties thereto, were incompetent; and that on these and other grounds in law the document could receive no effect.

The questions of law for opinion of the Court were—“(1) Is the said indenture or deed of trust valid and sufficient to convey to the second parties hereto a right of property in the subjects therein mentioned, under the burdens and conditions and for the trust-purpose therein set forth? (2) Is the said document valid and sufficient to constitute an obligation on the first parties hereto to convey to the second parties hereto a right of property in the subjects therein described, under the burdens and conditions and for the trust-purposes therein set forth? (3) Is the said document valid and sufficient to any and what effect?”

Section 20 of “The Titles to Land Consolidation Act 1868,” and sections 38 and 39 of the Conveyancing (Scotland) Act 1874, were referred to and founded on. Section 39 of the latter Act was as follows:—“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 be 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.”

Argued for the first parties—This deed was invalid, in respect (1) That the second witness was not called as a witness; (2) That he signed after the death of the granter; (3) That the granter had of her own free will, though it was not necessary, imposed the form of mutual contract upon the transaction, and this transaction was not completed till after the death of one of the parties; (4) That the deed was in the form of a lease for ever, which was incompetent. There was still required by the law of Scotland something in the way of solemnity, viz., that two witnesses should be present and sign. It was not sufficient merely to prove that the deed was executed in good faith, and was in bona fide the act of the granter; the witnesses must be requested to act as such, and must be present, or hear the signature acknowledged. A witness was as much a party to the attestation or solemnity of the deed as the granter himself; they were witnesses to the thing done, not to the writing alone.

Authorities—Conveyancing (Scotland) Actl874, secs. 38 and 39; Arnott, &c. v. Burt, Nov. 14,1872, 11 M. 62; Veasey v. Malcolm's Trustees, June 2,1875, 2 R. 748; Stewart v. Burns, Feb. 1, 1877, 4 11. 427; McLaren,. ( Norton's Executors) v. Menzies, July 20, 1876, 3 R. 1151; Frank v. Frank Others, March 3, 1795, reported in Bell on Testing of Deeds, &c., M. 16,824.

Argued for second parties—The 39th section of the Conveyancing Act of 1874 applied, for here the act was undoubtedly that of the granter of the deed, and all was done in good faith, and any want of solemnities could be afterwards remedied. Under the old statute all that was necessary was that the Act should be done “in presence of

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witnesses.” It was therefore not necessary to summon the witnesses if they were present and saw what was done. It was not a valid objection to a signature that it was filled in ex intervallo. (Cases quoted of Frank and Arnott v. Burt).

Authorities—Cases quoted supra, and Smyth v. Smyth, March 9,1876, 3 R. 573; Stat. 1681, c. 85; Duff on Conveyancing.

At advising—