Scottish Court of Session Decisions

On 6th January 1887 the estates of Peter Murray, farmer and builder, Rivehill, Aberdeenshire, were sequestrated, and Robert Downie Leslie, advocate in Aberdeen, was appointed trustee thereon. The bankrupt was at the time of his death proprietor of certain heritable properties. All these properties were burdened, there being four bonds upon them, of which one was held by Miss Elizabeth Wood and one by Mr and Mrs Hutcheon.

The description of the subjects of the security was the same in both bonds, viz.—“All and Whole that piece of ground fronting Baker Street of Aberdeen, in the burgh and county of Aberdeen, being the subjects and others particularly described in the feu-charter thereof granted by Basil John Fisher, &c., in my favour, dated the 6th and 7th, and recorded in the Division of the General Register of Sasines applicable to the county of Aberdeen, on the, all days of November 1882.” These bonds were recorded on the 20th of November 1882.

The heritable creditors having taken no steps to sell these properties, it was resolved by the trustee and his commissioners to expose the same for sale. The properties were sold, and thereafter the trustee made up a scheme of ranking and division of the claims on the prices of the heritable properties so sold. In making up this scheme he disallowed any ranking in respect of the bonds of Miss Wood and Mr and Mrs Hutcheon, on these grounds, (1) that it was not possible from the description in the bonds to identify the subjects of the security; and (2) that “the short description authorised by section 61 of the Conveyancing (Scotland) Act of 1874 having been adopted, it was absolutely essential

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that the date of recording the prior deed referred to, containing the particular description of the subjects, should be given, and that had been omitted in both bonds.”

The Conveyancing (Scotland) Act 1874 (37 and 38 Vict. cap. 94), sec. 61, provides that “Section eleven of The Titles to Land Consolidation (Scotland) Act 1868 is hereby repealed; and it is provided that in all cases where any lands have been particularly described in any conveyance, deed, or instrument of or relating thereto, recorded in the appropriate register of sasines, it shall not be necessary in any subsequent conveyance, deed, or instrument, conveying or referring to the whole or any part of such lands, to repeat the particular descriptions of the lands at length; but it shall be sufficient to specify the name of the county, and when the lands were held by mortgage or by any similar tenure prior to the commencement of this Act, the name of the burgh or county in which the lands are situated, and to refer to the particular description of such lands as contained in such prior conveyance, deed, or instrument so recorded, in or as nearly as may be in, the form set forth in Schedule O hereto annexed.…”

Schedule O is as follows—“The lands [ or subjects] and others [ or the lands delineated and coloured on a copy of the Ordnance Survey map hereto annexed, and signed as relative hereto], [ or the lands of A and others], [ or the house No. 10 Street and others], [ or other like short description], in the county of [ or in the burgh of and county of as the case may be], being the lands [ or subjects] particularly described in the disposition [ or other conveyance, deed, or instrument, as the case may be], granted by C D, and dated [ insert date], and recorded in the [ specify register of sasines], on the day of [ or as particularly described in the instrument of sasine or notarial instrument recorded, &c., or as the case may be. If part only of lands is conveyed, describe such part as above, and add, being part of the lands particularly described, &c., or thus, being the lands [ or subjects] as particularly described, &c., with the exception of, and [ describe the part excepted].”

Miss Wood and Mr and Mrs Hutcheon lodged objections to the trustee's scheme of ranking and division, in which they maintained—(1) That the subjects were sufficiently identified; and (2) that the omission of the day of recording did not invalidate the bonds. On 4th June 1887 the Lord Ordinary ( Trayner) pronounced an interlocutor sustaining these objections.

“ Opinion.—The bankrupt Peter Murray was proprietor of certain heritable subjects in Baker Street, Aberdeen, which have been sold by his trustee. The property was burdened; there were four bonds upon it, two of which are held by the objectors Miss Wood and Mr and Mrs Hutcheon; and these two are, if valid, preferable to the others. In the scheme of division and ranking which the trustee presents to the Court for approval, he proposes to disallow any ranking to the objectors on the price obtained for the property, on the ground that the bonds held by them are invalid, in respect that ‘ ex facie of these bonds it is not ‘possible to identify the subjects of the security.’ The description of the ‘subjects of the security’ is the same in both bonds.

“I am of opinion that the view maintained by the trustee is wrong.

“1. The subjects are described as ‘fronting Baker Street of Aberdeen, in the burgh and county of Aberdeen, being the subjects and others particularly described in the feu-charter thereof granted by Basil John Fisher, &c., in my favour, dated the 6th and 7th, and recorded in the Division of the General Register of Sasines applicable to the county of Aberdeen on the, all days of November 1882.’ If the exact date of recording the feu-charter referred to had been inserted instead of being left blank, there can bo no doubt that this description would have been sufficient under the provisions of 37 and 38 Vict. cap. 94, section 61, which provides for the description of heritable subjects by reference to other deeds where the subjects are particularly described. But I regard what has been done in the present case as a substantial if not exact compliance with the provisions of that statute. The deed referred to is recorded in the appropriate Register of Sasines, and is recorded prior to the recording of the bond making reference to it; the reference made to it is such as will enable anyone reading to find it, for it is said to be recorded in the month of November 1882. Further, it appears from the bond that the deed referred to was executed on the 6th and 7th days of November 1882, while the bond in which the reference is made was recorded on the 20th November 1882, so that the search for the deed referred to is limited to the period between 7th and 20th November 1882. This appears to me to be such a reference as will enable anyone to find the deed referred to, and I think the statute does not require more to be done. No doubt the statute requires the reference to be as nearly as may be in terms of the schedule thereto annexed, which runs ‘recorded in the on the day of.’ But in my opinion it would be straining the Act (in the present case with an unjust result) to say that no reference will fulfil its requirements unless the exact day of recording is stated. The purpose of the Act was to save the necessity for long descriptions where such descriptions could be got from a deed duly recorded, and which was referred to in such terms as would enable anyone to find it.

“But assuming that I have taken too liberal a view of the requirements of the Act, I am still of opinion that the trustee is wrong. The description of the property is given in a heritable bond, for the purpose of identifying the subject of the security, and in my opinion there can be no doubt about the identity of the subjects over which the bonds in question were granted.

“In the first place, the subjects are described as Murray's property in Baker Street, Aberdeen, and it is not said that Murray had any property in that street except one. In the second place it it is not only Murray's property in Baker Street, but the property conveyed to him by certain persons, fully designed by a certain deed fully described. I think these things which appear ex facie of the bonds are quite sufficient to identify the subject of the security— Cattanach's Trustee v. Jamieson, 11 R. 972.”

The trustee appealed, and argued—(1) That a party desiring to take the benefit of a short form prescribed by statute must observe it accurately—

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Johnston v. Pettigrew, June 16, 1865, 3 Macph. 954; (2) that the description was insufficient to identify the subjects— Belches and Murray v. Stewart, January 21, 1815, F.C.; Cattanach's Trustee v. Jamieson, June 25, 1884, 11 R. 973. The description was really the short description which the statute allowed, but which was not sufficient unless the reference was good.

The objectors were not called upon.’

At advising—