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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Simpson's Trustees v. Macharg & Son [1902] ScotLR 39_562 (31 January 1902)
URL: http://www.bailii.org/scot/cases/ScotCS/1902/39SLR0562.html
Cite as: [1902] ScotLR 39_562, [1902] SLR 39_562
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SCOTTISH_SLR_Court_of_Session
Page: 562↓
Court of Session Outer House.
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v.
Facts:
A truster left a trust-disposition and settlement duly subscribed by him and by the instrumentary witnesses, but wholly typewritten, and two codicils relative thereto, the earlier in date being typewritten and the later in date being written by hand, both referring in gremio to the settlement. The trustees acting thereunder having sold certain house property which formed part of the trust estate, the purchaser refused to accept the title to the property tendered by the trustees, on the ground that the trust-disposition and settlement forming part of the title was typewritten.
In an action by the trustees for implement of the sale, held (1) that, assuming the validity of the title depended upon sec. 149 of the Titles to Land Consolidation (Scotland) Act 1868, as modified by section 38 of the Conveyancing (Scotland) Act 1874, the trust settlement as a whole, including the two codicils—one of the codicils being written by hand—was a deed partly written and partly printed within the meaning of sec. 149; (2) that, irrespective of sec. 149 of the Act of 1868, the provisions of sec. 38 of the Conveyancing (Scotland) Act 1874 and of sec. 20 of the Interpretation Act 1889 had so modified the old Scots Acts 1593, c. 179, and 1681, c. 5, that all possible objections to deeds wholly or partially not written by hand, including typewritten deeds, had ceased to be of any force; and therefore (3) that the title tendered was valid, and decree granted, with expenses.
The Titles to Land Consolidation (Scotland) Act 1868 (32 and 33 Vict. cap. 116), sec. 149, enacts as follows—“All deeds and conveyances, and all documents whatever mentioned or not mentioned in this Act, and whether relating to land or not, having a testing clause, may be partly written and partly printed or engraved or lithographed: Provided always that in the testing clause … the name and designation of the writer of the written portions of the body of the deed or conveyance or document shall be expressed at length, and all such deeds, conveyances,
Page: 563↓
and documents shall be as valid and effectual as if they had been wholly in writing.” The Conveyancing (Scotland) Act 1874 (37 and 38 Vict. c. 94), sec. 38, enacts—“It shall be no objection to the probative character of a deed, instrument, or writing, whether relating to land or not, that the writer or printer is not named or designed … in the body of such deed, instrument, or writing, or in the testing clause thereof.”
The Interpretation Act 1889 (52 and 53 Vict. c. 63), sec. 20, enacts as follows—“In this Act, and in every other Act, whether passed before or after the commencement of this Act, expressions referring to writing shall, unless the contrary intention appears, be construed as including references to printing, lithography, photography, and other modes of representing or reproducing words in a visible form.”
John Percy Simpson, solicitor, London, and others, trustees acting under the trust-disposition and settlement dated 4th March 1899, and relative codicils dated the said 4th March 1899 and 17th February 1900, all registered in the Books of Council and Session 17th August 1900, executed by the late Pierce Adolphus Simpson, doctor of medicine and Emeritus Professor of Forensic Medicine in the University of Glasgow, brought an action against Macharg & Son, chartered accountants, 69 Buchanan Street, Glasgow, and the individual partners of said firm, concluding that the defenders should be decerned and ordained to implement their part of a minute of agreement and sale entered into between the pursuers and the defenders, dated 28th, 29th, and 31st August 1901, by accepting a valid disposition executed by the pursuers in their favour of certain subjects in West George Street, Glasgow, and by making payment to the pursuers of the sum of £5000, the agreed-on price of the said subjects.
By the said minute of agreement and sale of said subjects the defenders offered and the pursuers accepted the sum of £5000 as the price of the said subjects in West George Street, Glasgow, and the pursuers undertook, on payment of the said sum of £5000, to grant and deliver a valid disposition of the said subjects, and a valid title to the said subjects. The pursuers averred that they were and always had been prepared to implement their part of the said minute of agreement and sale, and to deliver a valid disposition of the said subjects, but that the defenders refused to implement their part of the agreement and to pay the stipulated price.
The defenders admitted that the pursuers had tendered a disposition of the property to the defenders and that the defenders declined, as matters stood, to make payment of the purchase price. They averred that their agents, having received from the pursuers' agents the titles of the property for examination and for preparation of the disposition of the titles, wrote to the pursuers' agents pointing out that the trust-disposition and settlement of the deceased Pierce Adolphus Simpson, in favour of the pursuers, which constituted the pursuers' title to the property, appeared from the extract exhibited to be entirely written with a typewriting machine, and that, if this was so, they did not see their way to accept it as a link in the title without either (1) the consent to the disposition of the heir at law of the testator, or (2) the authority of the Court.
The defenders further averred as follows:—“(Stat. 3) The defenders are willing and anxious to complete the purchase of the property in question upon getting a valid title thereto, but they feel they are not in safety to accept the title which has been tendered to them. The defenders believe and aver that the said title is invalid, or otherwise and at all events, that it is not a title omni exceptione major such as they are bound to accept without judicial sanction and approval. A deed forming a conveyance to land which is entirely written with a typewriting machine is an innovation in practice, and is, the defenders aver, not a valid probative deed. In any event, a deed in this form has never heretofore been decided by the Court to be a valid probative deed.… Moreover, typewriting by hand typewriting machines was not in vogue until long after said Act (1868) was passed. And it differs from ordinary printing in material respects. For example, any portion of a typewritten document may, with ease, be erased with indiarubber or otherwise effaced or removed, and the blank thus created may be filled in without leaving any trace of the erasure or alteration. There is a special kind of indiarubber for erasing typewritten matter. A typewritten deed is thus not protected against tampering with its contents in the same way as a deed which is either written or printed in the ordinary sense, or lithographed or engraved.”
The averments made by the defenders in Stat. 3 were denied by the pursuers.
The trust-disposition and settlement of the deceased Pierce Adolphus Simpson, of date 4th March 1899, including the testing clause, and the codicil dated said 4th March 1899, were wholly typewritten. The codicil dated 17th February 1900 was written by hand.
The pursuers pleaded, inter alia—“(1) In respect of said minute of agreement and sale, the pursuers are entitled to decree. (3) No relevant defence.”
The defenders pleaded, inter alia—“(2) The title tendered by the pursuers not being a valid and unexceptionable title such as the defenders are bound to accept under the minute of agreement between the parties, the defenders should be assoilzied. (3) The title tendered by the pursuers not being such as the defenders are bound to accept without a judicial affirmance of its validity, the defenders are, in any event, entitled to expenses.”
The following authorities were cited at the debate, in addition to those referred to by the Lord Ordinary:—Act 1593, cap. 179, Act 1681, cap. 5; Thomson v. M'Crummen's Trustees, February 1, 1856, 18 D. 470; aff. March 24, 1859, 31 Jurist 425; Simsons v. Simsons, July 19, 1883, 10 R. 1247, 20 S.L.R. 831; Whyte v. Watt, November 27, 1893, 21 R. 165, 31 S.L.R. 127.
Page: 564↓
I have given full consideration to the argument by which this construction has been supported, and have done so having fully in view that the matter is one purely statutory, and that if the defenders' objection is well founded on the terms of the statutes, it is of no consequence that the result is unfortunate or even irrational. I quite acknowledge that if that should be so it is a matter for the Legislature and not for the Court.
I am glad, however, to say that I have come to the conclusion, and in the end without difficulty, that Dr Simpson's settlement is a valid and probative deed.
The question may perhaps first be considered on the assumption that the pursuers are in the position of requiring to appeal to the Act of 1868. That is, as I shall point out presently, an assumption which I do not myself accept. But as both parties appeared to accept it, I shall first take the case upon that footing.
The 149th section of the Act of 1868, striking out what relates to the then existing statutory solemnities which were subsequently abolished by the Act of 1874, and retaining only what still remains operative, reads thus—‘All deeds may be partly written and partly printed, engraved, or lithographed, and all such deeds shall be valid and effectual in the same manner as if they had been wholly in writing.’
That is what remains operative of the section in question.
Now, upon these words the pursuers' first point was I think this. They said that a deed is partly written when the signatures of the granter and witnesses are written. I must say I cannot assent to that argument. It could not have been maintained on the section as it stood in 1868, for if so the condition expressed as to the insertion of the writer's name would have been plainly nugatory; and for purposes of construction the whole section, as it stands to the statute, has still to be considered. In any view, it is, I think, a rather extreme proposition that the requirement of some writing is satisfied by the mere existence of signatures, which must, of course, always be present and always be written.
Nor does it seem to me that the pursuers' second point is much better. It turns on the Interpretation Act of 1889, which provides as follows:—‘In this Act and in every other Act, whether passed before or after the commencement of this Act, expressions referring to writing shall, unless the contrary intention appears, be construed as including references to printing, lithography, photography, and other modes of representing or reproducing words in a visible form.” I am far from saying that this enactment may not have an important bearing on other parts of the argument. But I am afraid that if it is sought to be applied to the 149th section of the Act of 1868 it is not possible to say that an entire assimilation of printing and writing is otherwise than ‘contrary to the intention’ of an enactment like that of 1868, which expressly distinguishes between the two things.
The pursuers, however, have a third point, which is, I think, in a different position. They say that the assumed requirement of some writing, if not satisfied by the signatures, is yet in this case fully satisfied by the existence of the last codicil attached to the settlement—a codicil which is undoubtedly written, and which refers to the settlement, and which is in all respects an authentic writ. I did not hear, as I thought, any good answer to this argument, and it affords, as it seems to me, a quite good and sufficient ground of decision—that is to say, even assuming that the validity of the deed depends upon the applicability of the 149th section of the Act of 1868, I. am of opinion that Dr Simpson's trust-settlement as a whole is a deed partly written and partly printed within the meaning of that enactment.
The question, however, of the validity of deeds wholly typewritten having been argued as one of general interest, it may perhaps be proper that I should state my view upon that question. And I may state in the first place what I consider to have been the effect and object of the enactment of 1868. As I understand, and have always understood, that enactment was an enabling and not a restrictive enactment. It was, moreover, an enactment which enacted nothing, but merely removed certain supposed doubts with respect to the law settled by certain early decisions—decisions relative to a particular class of deeds, viz., deeds partly printed and partly written, which had long been in extensive use, and were the only deeds known in practice in which printing was introduced. See on this point Menzies' Lectures (2nd ed.), p. 84; Bell's Lectures (2nd ed.), p. 62; Stirling v. Earl of Glasgow, 1711, 4 Brown's Suppl. 856, and Morison, 16,868, also Allardyce, Morison, 16,862.
Now, that being the case, it does not at all follow that because it may not be possible to bring a deed wholly typewritten within the terms of the 149th section of the Act of 1868, it is therefore impossible to support otherwise the validity of such deeds. It may be found on examination
Page: 565↓
The old Scotch Statutes, it must be observed, made no distinction been printing and writing. Mr Ross, no doubt (vol. i. 38) objects to the admission of deeds not entirely in writing. But Lord Stair states expressly (iv. 42, 3) that ‘writ comprehends both chirographum and typographum,’ and if any doubt as to this existed it was removed by the Interpretation Act of 1889, to which I have already referred. The difficulties, so far as there formerly were difficulties, in the way of printed deeds were of a practical character, and arose mainly in connection with the necessity of inserting in all deeds the writer's name as required by the Statute of 1593, c. 179. The word ‘writer’ might perhaps include ‘printer,’ and more easily ‘typewriter.’ But printed matter is not generally the production of one person, and although that might not apply to typewriting, yet while the writer required to be named and identified, it was perhaps open to doubt whether it was not also necessary that what he wrote should be of a distinctive character. All this, however, is now altered by the Act of 1874. The writer having no longer to be identified, there is no longer, as it seems to me, any difficulty in giving the same effect to print or typewriting as to ordinary handwriting. Nor is there any room for distinguishing between deeds wholly printed or wholly typewritten and deeds partially printed or typewritten. It appears to me that when the matter is examined and understood it does not admit of serious doubt, and therefore I repel the defences and grant decree, and having considered the question of expenses I think in this case expenses must follow the result.
His Lordship granted decree with expenses.
Counsel for the Pursuers— Salvesen, K.C.— Craigie. Agent— J. Gordon Mason, S.S.C.
Counsel for the Defenders— Cullen. Agents— Macandrew, Wright, & Murray, W.S.