Scottish Court of Session Decisions

This was an application for a declaration under section 39 of the Conveyancing Act of 1874, which provides—“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 late Very Rev. Edward Bannerman Ramsay, Dean of Edinburgh, died on 27th December 1872. He left a trust-disposition and settlement, the trustees nominated by which were the late Sir James Burnett of Leys and the late Hugh James Rollo, W.S.

In carrying out the purposes of the trust the trustees in November 1874 executed a disposition and conveyance in favour of the parties mentioned in the deed, of certain heirtable subjects situated on the east side of Ainslie Place, Edinburgh.

The testing clause of the said disposition and conveyance was in the following terms, viz.—“In witness whereof, these presents, written on this and the two preceding pages of stamped paper by John

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Ramsay Smith, clerk to Messieurs James Currie Baxter, Solicitor Supreme Courts, and Alexander Edward Burnett, Writer to the Signet, both of Edinburgh, are subscribed as follows, videlicet—By me, the said Sir James Horn Burnett, at Crathes Castle, Kincardineshire, the 27th day of November, in the year 1874, before these witnesses George John Pitt Taylor, late Captain of the 78th Highlanders, residing at Bandrum, near Dunfermline; and James Thom, butler to me at Crathes Castle aforesaid; by us, the said Mrs Harriet Georgina Alice Cochrane or Richardson, and Captain James Thomas Stewart Richardson, at Altamont, Blairgowrie, the 7th Day of December and year last mentioned, before these witnesses—Elizabeth Jarvis, nurse at Altamont aforesaid, and Mary Stewart, maid to the said Miss Caroline Ella Cochrane residing there; and by me, the said Hugh James Rollo, at Edinburgh, the 10th day of March 1875 years, before these witnesses, William Robertson, apprentice, and John Alexander James, clerk, both to me, the said Hugh James Rollo.”

Doubts arose as to the probative character of the said disposition and conveyance, in the following circumstances. One of the witnesses to the signature of the said Hugh James Rollo, in whose presence as well as in that of John Alexander James, the other instrumentary witness, the said Hugh James Rollo subscribed the said dis-position and conveyance, was William Roberton, apprentice to him, and the subscription of this witness, as written upon the said disposition and conveyance is, “Wm. Roberton, witness.” The writer of the testing clause, however, wrote “William Robertson, apprentice to me, the said Hugh James Rollo,” and there was thus a discrepancy between the signature of William Roberton, to whose signature no designation is appended, and the statement in the testing clause that the instrumentary witness was “William Robert-Son.

Both of the trustees of the said Dean Ramsay, who granted the said disposition and conveyance, were dead. The last survivor was Hugh James Rollo.

The subjects were recently acquired by a singular successor, who took exception to the title, and the present application was accordingly made.

The petitioners asked for a proof.

William Roberton deponed—“1 remember generally the disposition being sent to Sir James H. Burnett and coming back to Mr Rollo. I knew Mr Rollo's signature well. I signed as one of the instrumentary witnesses to Mr Rollo's signature. The subscription, “Wm. Roberton, witness,” is mine. It was appended by me at the time Mr Rollo executed the disposition, which he did in my presence. I produce the draft of the deed having the instructions of the testing clause. My name is properly spelt in the directions for filling up the deed. The schedule of directions, so far as applicable to Mr Rollo's signature, was filled up by me. There was no William Robertson in Mr Rollo's office at that time.”

John James deponed—“That is Mr Rollo's signature, and that is my signature as one of the instrumentary witnesses. It was signed in my presence, and in that of Mr Roberton the last witness. There was no apprentice or clerk in the office of the name of Robertson at that time. I know Mr Roberton's signature well; he was in Mr Rollo's employment all the time I was, and that is his signature appended as one of the witnesses to the disposition No. 1. The testing clause is written by Mr J. Ramsay Smith, now a solicitor at Peebles.”

Argued for the petitioner—A wrong name in the testing clause did not vitiate the deed—what was essential was the designation of the witnesses— M'Dougall v. M'Dougall, June 15, 1875, 2 R. 814; Thomson's Trustees v. Esson, November 2, 1878, 6 R. 141. Here there was no informality but only a discrepancy, and the Court ought to grant the declaration sought.

The purchaser was represented by counsel who did not submit any argument.

At advising—