Scottish Court of Session Decisions

The Lord Ordinary ( Adam) appointed the defenders quam primum to state in a minute “whether the extended deed was read over to the deceased before it was signed by the notary and witnesses, and if so by whom.”

The defenders stated by joint minute that “while the lapse of time had thrown difficulties in the way of their getting accurate information, they averred and offered to prove that the deed of which reduction was sought had been twice read over to the granter before subscription—the first time verbatim, and the second time, if not verbatim, at all events substantially, no material word being omitted. The first of these readings was made from the draft, and the second was made from the extension. On both occasions the deed was read by Mr William Pollok, writer, in Hamilton, who executed the deed notarially. The defenders aver and offer to prove that the whole requirements of the Conveyancing (Scotland) Act 1874 in regard to notarial subscription were duly complied with.”

The Lord Ordinary thereafter found “that the trust-disposition and settlement of the late Thomas Watson had not been validly executed in terms of the law and practice of Scotland with reference to the notarial execution of deeds, and in particular had not been validly executed in terms of the 41st section of the Conveyancing (Scotland) Act 1874: Therefore reduces, decerns, and declares in terms of the conclusions of the summons.

“ Note.—In this case the trust-disposition and settlement of the late Thomas Watson is sought to be reduced at the instance of William Watson, his eldest son, and Mrs Macnair, one of his daughters.

Thomas Watson died on 19th July 1878. The trust-disposition and settlement bears to have been executed of the same date on his behalf by a notary-public in presence of two witnesses, he having been unable to write on account of sickness and bodily weakness.

One ground of reduction is that the execution by the notary is invalid because the docquet appended to the deed does not bear that the deed had been “read over” to the granter in presence of the witnesses.

The Lord Ordinary has had considerable doubt whether he should not before disposing of the case, have allowed the parties a proof of their averments, and the more so, because having regard to the terms of the minute, he can only safely do so on the assumption that the deed had been in point of fact read over to the granter, and therefore that the objection to the execution of the deed merely amounted to this, that that fact had not been set forth in the docquet. On the other hand, if the Lord Ordinary's opinion on the matter is sound, an expensive litigation will be avoided by now deciding the question.

It was admitted by the defenders that the deed was not validly executed according to the law and practice in force prior to the Conveyancing Act of 1874, and still in force, and therefore that the only question was whether the deed was validly executed in terms of the 41st section of that Act.

It appears to the Lord Ordinary that whether the docquet to the deed be in the form set forth in the schedule annexed to the Act, or in words to the like effect, two things must be set forth in the docquet—(1) That the granter of the deed authorised the execution of it; and (2) That the deed had been read over to him in presence of the witnesses. These two things are clearly statutory requisites, which must be set forth in every docquet, and are necessary to the valid execution of a deed by a notary.

In this case the docquet does not set forth that the deed had been ‘read’ over to the granter in presence of the witnesses. It sets forth that the deed had been ‘gone over and explained to him in presence of the witnesses.’ Assuming that words equivalent to the words ‘read over’ might competently be used, the Lord Ordinary does not think that the words ‘gone over and explained’ are at all equivalent to a statement that the deed had been ‘read over’ as required by statute. They rather suggest a different operation, and it is sufficiently clear that a deed may be ‘gone over and explained’ although little or none of it may be verbatim read, which in the Lord Ordinary's opinion the statute requires.

The Lord Ordinary is therefore of opinion that this deed is not validly executed in terms of the 41st section of the Conveyancing (Scotland) Act 1874, and must therefore be reduced….

The Lord Ordinary was referred to the following cases— Thomson, v. M'Cummons Trs., 18 D. 470; Grœme v. Grœme's Trs., 7 Macph. 14; Aitchison's Trs. v. Aitchison, 3 R. 888.”

The defenders reclaimed, and argued—The docquet contained all which was prescribed by the 41st section of the 1874 Act, and it was not necessary to follow the precise words of the schedule. The form contained in the schedule was merely suggested by statute as a good form, but not as the only one— Aitchison's Trustees v. Aitchison, January 21, 1876, 3 R. 388. The expression “gone over” used here was perfectly equivalent to the expression “read over.”

The pursuers replied—It was not clearly on record what in point of fact had been read to

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