Scottish Court of Session Decisions

The Conveyancing (Scotland) Act 1874 (37 and 38 Vict. cap. 94) enacts—section 39—“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 proof 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.”

Frank Hunter and others, testamentary trustees of the deceased John Grieve, petitioner. brought a petition under the Conveyancing (Scotland) Act 1874 (37 and 38 Vict. cap. 94), section 39, craving the Court to allow a proof of the averments contained in the petition, and thereafter to declare that the deeds after mentioned were duly subscribed by the granters.

Answers were lodged by James Thomas Japp and others, testamentary trustees of the deceased William Japp, solicitor, Alyth,

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who prepared the first of the deeds after mentioned, and by Messrs Japp & Yeaman, solicitors, Alyth, who prepared the second of the deeds after mentioned, and another, respondents, against whom the petitioners craved the expenses of their application.

The petition set forth—“1. That the late John Grieve purchased from Thomas Adam, farmer, Shanley, in the parish of Lintra-then and county of Forfar, with entry at the term of Whitsunday 1898, the following subjects, viz.—[ then followed adescription of the subjects]; conform to disposition granted by the said Thomas Adam in favour of the said John Grieve, dated 22nd and recorded in the Division of the General Register of Sasines applicable to the county of Perth 28th, both days of June 1898. 2. In the progress of titles of the said subjects there is a disposition in favour of James Adam, farmer, Clintlaw, dated 6th and 13th November 1883. This disposition bears to be granted with consent of John Skeen, feuar, Alyth, by Mrs Isabella Williamson or Moncur, then residing at Clifton near Bristol, widow of the deceased David Moncur, sometime manufacturer in Blairgowrie, as factor and commissioner for ohn Rait Moncur, coffee planter, then residing at Ashambro in the Presidency of Madras, conform to factory and commission in her favour therein mentioned. The testing clause states that the disposition was subscribed ‘by me the said Mrs Isabella Williamson or Moncur at Gibraltar on the 6th day of November 1883, before these witnesses, William Turner, doctor of medicine in the Civil Hospital there, and William Moncur, my son.’ The disposition is signed ‘Isabella C. Moncur,’ and there is nothing in the deed to show that Isabella C. Moncur is the same person as Mrs Isabella Williamson or Moncur. The disposition was prepared by William Japp, solicitor, Alyth. 3. The said John Grieve purchased from Mrs Joan Colville or Brown, widow, and Miss Isabella Colville, both residing at Park Cottage, Meethill, Alyth, with entry at the term of Whitsunday 1900, the following subjects, viz.—[ then followed a description of the subjects]; conform to disposition granted by the said Mrs Joan Colville or Brown and Miss Isabella Colville in favour of the said John Grieve, dated 26th April and recorded in the said Division of the General Register of Sasines 1st May 1900. The testing clause states that the deed was subscribed by ‘us both at Alyth on the 26th day of April 1900, before these witnesses, James Smart, burgh surveyor, Alyth, and the Reverend Patrick Gorthy Gilruth, residing at Angle Villa near Alyth.’ The disposition is signed ‘Joan Colville Brown,’ and there is nothing in the deed to show that Joan Colville Brown is the same person as Mrs Joan Colville or Brown. The disposition was prepared by Messrs Japp & Yeaman, solicitors, Alyth. 4. The petitioners as trustees foresaid made up titles to the above two subjects and are infeft therein. 5. The petitioners as trustees foresaid sold the above two subjects along with other subjects with entry at the term of Whitsunday 1915 to James Adam Hunter, Kilfinichen, Aros, Mull, and presently residing at Barony Hall, Alyth, retired planter, and his agents have taken exception to the two last-mentioned dispositions in consequence of informalities in the execution thereof, and express doubt as to the probative character of the said two deeds. 6. That the said Mrs Isabella Williamson or Moncur and the said Mrs Joan Colville or Brown are both now dead. 7. The writers of the respective deeds both being alive the petitioners' agents suggested to the purchaser's agents that on the assumption that there are informalities in the deeds these might be cured by adding to the testing clause of the disposition granted by Mrs Isabella Williamson or Moncur a declaration to the effect that she signed the deed with her usual signature ‘Isabella C. Moncur,’ and to the testing clause of the disposition granted by the said Mrs Joan Colville or Brown and Miss Isabella Colville a declaration that the deed was signed by the said Mrs Joan Colville or Brown with her usual signature ‘Joan Colville Brown,’ but they refused to accept this on the ground that any informalities could only be cured by a petition to the Court under section 39 of the Conveyancing (Scotland) Act 1874. 8. That the said William Japp is also now dead. That James Thomas Japp, solicitor, Alyth, and William Buchan Japp, Writer to the Signet, residing sometime at Craiglea Cottage, Alyth, and now in Edinburgh, are the trustees acting under his trust-disposition and settlement to which his wife Mrs Catherine Fenton or Japp was a party, dated 1st and llth August 1888, and codicil, to which his wife was also a party, dated 26th February 1892, and both registered in the Books of Council and Session 10th October 1913. 9. That John Yeaman, solicitor, Alyth, is the sole surviving partner of the said firm of Messrs Japp & Yeaman.”

The answers set forth—“The respondents submit that the petition is unnecessary, and that the averments therein contained are irrelevant.

They submit that each of the deeds objected to contains a proper testing clause bearing that the same was subscribed by the granter, and also bears to be signed by the granter thereof.

It is admitted that Mrs Isabella Williamson or Moncur is dead, but denied that Mrs Joan Colville or Brown is dead. She at present resides in Alyth.

As regards the first-mentioned deed it is submitted that it bears to be signed by Isabella Moncur, the granter thereof, and that the addition of a central initial does not amount to an informality. The said deed has not been registered in the register of sasines. The title was completed, inter alia, under said deed by a notarial instrument recorded in the Division of the General Register of Sasines applicable to the county of Perth on 16th March 1893, being more than twenty years before the present time, and the title offered is accordingly good and sufficient notwithstanding the alleged informality.

As regards the second-mentioned deed it bears to be signed by Joan Colville or

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Brown, using both her maiden and her married name. It is submitted that she was entitled to do so, and that her doing so does not constitute an informality.

The respondents accordingly submitthat the petition should be dismissed as unnecessary.”

Argued for the petitioners—There was an informality of execution in the sense of the Conveyancing (Scotland) Act 1874 (37 and 38 Vict. cap. 94), sec. 39, for the signatures did not correspond with the testing clause, and might be of quite other persons than those in the testing clause— Richardson's Trustees, 1891, 18 R. 1131, 28 S.L.R. 889. Further, the notarial instrument referred to in the answers was not the title, but proceeded upon the title in which the informality was, and it was on the title that prescription ran— Kerr's Trustee v. Yeaman's Trustee, 1888, 15 R. 520, per Lord Rutherfurd Clark at p. 530, 25 S.L.R. 378; Glen v. Scales' Trustee, 1881, 9 R. 317, 19 S.L.R. 201. The prayer of the petition should be granted.

Counsel for the respondents was not called upon.