a

sense,

reforms, from the conveyancing standpoint, THE CONVEYANCING (SCOTLAND)

probably the most far-reaching are those ACT, 1924.

which authorise trustees, including judicial BY CHARLES MACKINTOSH, B.A., LL.B., ADVOCATE. factors, at their own hands to sell heritage BY CHARLES Mackintosh, B.A., LL, B., ADVOCATE: unless specifically restrained by the trust deed,

This Act, which received the Royal Assent and extend the power of the Court to relax on 1st August 1924, is one of a series resulting restrictive provisions imposed by trusters. from the deliberations of a committee appointed Important and useful reforms are also made some twelve years ago by the Lord Advocate in the law dealing with fiduciary fees. Next of the day, now Lord Strathclyde, to consider comes the omnibus Act, the Conveyancing proposals for the further simplification of Scotland) Act, 1924, which it is the purpose conveyancing in Scotland, the term con- of this paper to discuss. veyancing being interpreted in its widest Not unnaturally the Conveyancing Act has

The committee was composed of been subjected to more criticism in its Bill representatives of the leading legal societies in stages than any of its five predecessors in the Scotland, and was presided over throughout series. Each of its numerous proposals was by Sir George Paul, D.K.S., as its chairman. justifiable matter for careful discussion and The list of Acts which, up to date, are the report. Moreover, its omnibus nature-perhaps fruits of its labours, is as follows :

inevitably—gave rise to controversy as to 1. The Entail (Scotland) Act, 1914;

whether certain proposed changes in the law 2. The Feudal Casualties (Scotland) Act, were matter proper to be included in a con1914;

veyancing Bill, however desirable in themselves. 3. The Intestate Husband's Estate (Scotland) The rival claims of systematic unity and Act, 1919;

practical expediency had each to be considered 4. The Married Women's Property (Scotland) and given due weight to, and the various Act, 1920;

interests affected dealt with in the light of the 5. The Trusts (Scotland) Act, 1921; and ruling principles of simplicity and economy, 6. The Conveyancing (Scotland) Act, 1924. With a subject-matter at once so technical and

A certain persistency of output is here so varied the passing of this measure into law exhibited, with interruptions caused by the could hardly have been otherwise than attended war and recently by pressure of time arising with difficulties and à certain amount of from the number of other legislative proposals adverse criticism, and on one or two points before Parliament. Happily, the series has at any rate the effects of compromise can be been unaffected by changes in political power, clearly detected. The Act, however, as it has the whole of the Acts having been passed of emerged from Parliament, is a courageous step consent in a decade which has witnessed an un- towards the simplification and modernisation paralleled diversity of political administrations. of our system of conveyancing, and all credit

There is a marked contrast between the last is due to the skill and industry of its authors of the six Acts and its five predecessors. Each and to Mr F. C. Thomson, K.C., M.P., and to of the five dealt substantially with one subject, Lord Dunedin, who in the House of Commons whereas the Act of 1924 is rather of the nature and in the House of Lords respectively naviof an omnibus Act. The Entail Act provided gated the Bill to port, and to the Lord Advocate, for the gradual extinction of strict entails and whose influence, though less apparent, was no of trusts containing entail-like restrictions—a less material to its successful passage. process which has made marked progress The importance of this Act from the point since 1914. The Feudal Casualties Act provided of view of the legal profession is self-evident, for the extinction of feudal casualties and dupli- and the Act will doubtless be expounded in cands and all such like payments, save annual detail in due course. Here it is only proposed feu-duty. So much progress has already been to summarise, without embarking on technical made in this direction that the year 1929 will detail, what it purports to do; and first it in all probability see the process complete. may be convenient to advert to subjects dealt The Intestate Husband's Estate Act provides with in the Act which are scarcely within the machinery for giving to a widow the benefits scope of conveyancing in its narrower sense, to which she is entitled under the similarly and require considerations of expedien and named Act of 1911. The Married Women's existing statutory precedents to justify their Property Act carries on the work of the Act of inclusion in a Conveyancing Act. 1881, and puts married women in a perfectly (a) Prescription both positive and negative independent position as regards their property, are dealt with. As regards the former, it is and enacts other useful cognate reforms. The well known that by the Conveyancing Act of Trusts Act is partly consolidating and partly 1874 the period was reduced from forty to amending in its enactments. As regards its twenty years, with a relaxation in favour of

a

owners

persons under. majority or subject to legal The Entail Amendment Act, 1848, section 47, disability, but so as not to increase the period provided against future perpetual trusts of beyond thirty years in all. The existence of land, i.e. trusts dated on or after 1st August this relaxation has been found in practice to 1848, and by section 8 of the Entail Amendment make the period of thirty years the rule for Act, 1914–one of the present series-provision positive prescription rather than the exception, is made for terminating those dated before thereby to a large extent defeating the main 1st August 1848. Future perpetual trusts of purpose of the enactment. The present reform moveable estate were dealt with by section 17 consists in effect in repealing the relaxation, of the Entail Amendment Act, 1868, and proand thus in actual fact reducing the period to vision made for those dated on and after twenty years in all cases, excepting servitudes, 31st July 1868 being terminated. This enactpublic rights of way, and other public rights, ment is repeated in section 9 of the Trusts as to which no change has been made in the (Scotland) Act, 1921. The present Act comexisting law either by the Act of 1874 or by pletes the process by providing for the terminathe present Act.

tion of perpetual trusts of moveable estate A corresponding reduction from forty to dated prior to 31st July 1868, provision being twenty years-has also been effected in the made for preserving existing interests. long negative prescription; not, indeed, in section in question appears to be modelled on reference to all claims, but in reference to all section 8 of the Entail Act of 1914. matters of heritable right and title other than The reforms which are of a more directly servitudes, public rights of way, and other conveyancing nature are more numerous and public rights. There is thus effected a sub- more various. One important enactment aims stantial reform so far as regards facility for at the abolition of notarial instruments as conveyancing. Doubtless the underlying idea unnecessary. It provides a means whereby is that, with present-day facilities for com- uninfeft

may effectually convey munication, the period of twenty years in the property, a short statement of the title of the twentieth century in Scotland is more than granter being contained in the deed of conveyequal to forty years there at the time when ance to be granted by him. This statement the long prescriptions were enacted.

has the effect hitherto attained by notarial (6) The law of succession is also to some instrument and eliminates an intermediate and extent dealt with by the Act. The intricacies unnecessary step. Moreover, in cases where and anomalies of the law which held certain this new form may be inapplicable, a shorter investments to be heritable for certain purposes form of instrument called a notice of title and non-heritable for others are well known to has been provided. all practitioners. The result was that different The shortening of deeds applicable to heritable tests applied as to the investments which were estate has been a main object aimed at by the subject to a widow's jus relictæ (or a widower's Act. This has been sought by encouraging jus relicti), and to the legitim of a child. Much the further use of, and in certain respects trouble and practical difficulty, and not in- abbreviating, descriptions by reference, and frequently acrimonious disputes, arose from by the provision for making plans part of this state of matters. This is remedied by the the Register of Sasines. Most of all has this enactment which applies the same test, that shortening been sought for in the case of applicable to legitim, to all three purposes. security deeds. One enactment conducive to

Again, as to terce and courtesy there are this end renders it needless to refer in security important modernising and simplifying enact- writs to conditions of tenure. This ought to ments. The archaic processes of serving and result in the adoption in more cases of descripkenning are abolished, the law which made the tions by reference in ordinary bonds and rights of parties depend on the accident of dispositions in security, while the total eliminainfeftment or non-infeftment is abrogated, tion of descriptions of the property from and terce and courtesy are convertible into assignations and discharges of heritable securidefinite and redeemable annual sums.

ties and the shortening of deductions of The simplifications which have here been title ought to disencumber these writs of much effected will be readily recognised by trustees useless verbiage. Further, the simplification and all who have to do with the administration of, and the application of elasticity to, procedure of trust estates, and the rights concerned have for calling up bonds and selling or otherwise been made to operate with greater fairness in using diligence under them will, it is hoped, view of the modern conditions under which prove advantageous to borrower and lender property both heritable and moveable is held.

alike. The application of forms of feudal (©) The Act also gives the finishing legislative conveyancing to registered leases is also a touch to the process of providing for the simplifying reform. termination of all permanent private trusts. As regards certain minor matters the Act

abolishes and disencourages what has become against all previous proprietors within the 'obsolete or superfluous. Sasine ex propriis prescriptive period from a date forty years manibus disappears, ratifications by married previous to the transaction down to the dates women are to be no longer required, real of their respective divestitures. The effort to warrandice in due time will die, and the peculiar limit searches in the personal registers to five process of interdiction is to cease. A further years has been renewed in the present Act in a step towards modernity consists in the prohibi- more determined fashion. All entries in the tion of grain feu-duties in future feus ; and the personal registers are now to prescribe in conversion into cash of existing grain feu-duties five years, and, with the exception of notices and multures under a scheme set forth in the of bankruptcy, they cannot be kept up by Act will simplify titles, as also will the ultimate being renewed each five years as could be done commutation or abolition of carriages and with inhibitions under the 1874 Act. It would services.”

appear, therefore, that in the future searches The tale of reform is by no means told. in the personal registers can with safety be Always in the direction of enabling, shortening, limited to five years. A word of caution is, and simplifying, it extends to warrants of however, necessary. The enactment cannot registration, the consolidation of property in the nature of things mature until five years and superiority, the notarial execution of deeds, after 1st January 1925, and when that time the allocation of feu-duties, and the trans- comes, while the search may be limited to mission of personal obligations of bonds in five years, careful consideration is required gremio of a conveyance. The provisions of as to what names must be included in it. the Act by which the effect of an omission in a Finally, let us ask, is the process of reform deed to refer to conditions of tenure contained in the regions of law to which we have been in another deed is minimised, and by which the referring for the present complete? No penal consequences may be evaded and the conveyancer will answer this in the affirmative omission rectified, will be perused with thankful-while the matter of teinds remains to be dealt ness by those whose duty it is to scan title with. Promoted from altogether different deeds for the discovery of technical defects. motives, the Church of Scotland Bill now before Ground annuals are dealt with in detail. The Parliament gives promise of operating instatutory provisions on this subject do not cidentally as a conveyancing reform of firstlend themselves to condensed statement, but class importance. Moreover, in these days of are in harmony with the remainder of the equality of women, is it to be expected that Act. The subject of law agents’ lien is also for long one-half of the electorate of Scotland touched upon, and personal interest will will acquiesce in the withholding from them doubtless induce law agents to study with of equal rights in heritable succession already care the provisions of the section which restricts conceded by Parliament to their English their lien on title deeds as against a heritable sisters ? Is our system of registration of land creditor.

rights perfect ? No informed person can mainEnough has been written to shew the compre- tain the affirmative. Is the feudal system hensive

scope of the Act and the desirability, itself, or what remains of it, immune from indeed the necessity, for the careful study of its criticism ? Surely not. And as soon as the provisions by every conveyancer, if possible, Feudal Casualties Act has done its work, do with the assistance of a detailed exposition of not the circumstances call for a great Conthe Act. But on one more subject it seems solidation Act, by which at once the statute necessary here to touch, namely, the matter of book will be purged of a great mass of obsolete searches. As is well known an effort was made matter and the relevant living legislation will in the Conveyancing Act of 1874 to diminish | be collected and co-ordinated in one statute, the expense of searches by restricting to five to the relief of the profession and the benefit years the period of search required in the of the public ? personal registers on a transfer of heritage.

. The attempt, however, was ineffectual, as the five-year restriction imposed by that Act was NEW SCOTTISH K.C.'s.-The King has been limited to inhibitions, whereas other matters pleased, on the recommendation of the Secretary such as bankruptcies, interdictions, and so forth for Scotland, to whom the names were subentered the personal registers. Thus, while the mitted by the Lord Justice General, to approve

restrictive enactments relative to inhibitions of the rank and dignity of King's Counsel to contained in the 1874 Act no doubt considerably His Majesty in Scotland being conferred on Mr facilitated conveyancing, the necessity for John Buchanan Young, advocate; Mr Jas. searching in the personal registers for forty Macdonald, advocate ; Mr John Francis Caryears remained as before, and not only had the mont, advocate ;

Mr Archibald Crawford, search to be made against the vendor, but also advocate.

SALE

C.I.F.

a

MR J. W. WYLLIE, solicitor, Royal Bank

DECISIONS IN THE ENGLISH Buildings, Kinnoull Street, Perth, intimates

COURTS. that he has assumed as a partner Mr J. T. Henderson, solicitor, who has been his chief Scriven Brothers v. Schmoll Fils & Co. Inc. assistant for the past eighteen months. The

CONTRACT

DELIVERY. - A business will be carried on under the firm namec.i.f. contract contained the following stipulaof Messrs J. W. Wyllie & Henderson.

tion: “No claims shall be valid unless made in

writing within two weeks after the goods are MESSRS RICHARDSON & GEMMELL, solicitors,

delivered.

Goods arrived in dock are Haddington and North Berwick, intimate that deemed delivered to buyers.” Dispute arose the firm will be carried on by John Paris Steele, over the quality of the goods which formed the B.L., solicitor, who has been associated with subject-matter of the contract, and the buyers the firm for over twenty years. He will be made a claim for bad quality more than fourteen assisted by Mr William A. Douglas Murray. days after the date of delivery of the documents, The business will be continued under the but less than fourteen days after the delivery existing firm name.

of the goods to the buyers from the ship. The question was whether such claim had been

timeously made. Held that the construction THE death occurred suddenly on 17th most consonant with the other provisions of August of Mr Gavin William Ralston, barrister the contract was that delivery meant delivery of the Inner Temple, who was spending his from the ship to the buyers; and that honeymoon at Worth Matravers, near Swanage, accordingly the claim had been timeously Dorset, and who at the time of his death was made.-K.B. Div. (Roche J.).——26th May 1924. walking along the road from Worth Matravers to Kingston.

Mr Ralston was married at the Temple CURRENT LAW LITERATURE. Church, London, on 5th August to Countess Thais Makharoff, daughter of Countess Orloff Faculty Digest of Cases, 1868–1922. Vol. I. Aband the late Professor Yarov Makharoff, who solute Disposition to Duplicand. W. Hodge di was killed by Bolsheviks. Mr Ralston was a

Co. Ltd.

Price 63s. member of the Faculty of Advocates, Edinburgh, and practised both in Glasgow and Burns's Income Tax Guide. Sixth Edition, coverLondon.

W. Green d: Son Ltd. In 1900 and January 1910 he un

ing 1924 Finance Act.

Price 2s. 6d. successfully contested West Fife in the Conservative interests. He came forward as an Company Law: a Practical Handbook for Lawyers Independent Unionist at a by-election in the and Business Men. By Sir Francis Beaufort Central. Division of Glasgow in August 1915, Palmer. Twelfth Edition by Alfred F. Topham, but was again unsuccessful.

LL.M., K.C., assisted by Alfred R. Taylour,
M.A., Barrister-at-Law. Stevens & Sons Ltd.

Price 25s. net. The death took place on 19th August at a nursing home in Aberdeen of Mr David William Michael and Will on the Law relating to Gas and Shaw, of Blackhouse, Ayr. Mr Shaw, who Water. Seventh Edition, in two Volumes. By was in his 62nd year, was the eldest son of the F. T. Villiers Bayly, Barrister-at-Law. Vol. I. late Mr Charles G. Shaw, County Clerk of Ayr- Gas. Butterworth & Co.

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William Henry Eldridge, B.A. Second Edition

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Price 25s. net. early association with his father brought him much in contact with county public bodies The Story of Our Inns of Court. As told by The and public men, and he held the offices of Rt. Hon. Sir D. Plunket Barton, Bart., P.C., Clerk to the Peace of Ayrshire, Clerk to the K.C., ex-Judge of the High Court of Ireland, and Ayr District Committee of the County Council,

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Ltd. : Sweet & Maxwell Lid.

.

66

C

and was inveighed against by the greatest . MEMOIRS OF A CHARTULARY.

legal philosophers in respect of the evils it By WM. YEAMAN.

brought in its train.

The laird was not one of those who entailed If I am not a most ingenious paradox” I his estate. He preferred to retain full freedom think I

тау claim to be in some respects of action for himself and his successors in paradoxical. I am a creature of contrasts and regard to his lands, and accordingly many a creator of contrasts. In me are combined the documents which the law of entail rendered ancient and the modern. The older I grow necessary in connection with lands which the more modern I become. I am old, but were entailed are not found in me. They found fresh blood is transfused into me which keeps their way

into the

pages

of
my

brother me young

I follow fashion while I retain my chartularies, and we talked of them when the ancient styles.

chambers of the legal gentlemen, under whose I first came into being in the year 1681 care and protection we lived, were at rest when a certain merchant in the village on the after the labours of the day. laird's estate approached the laird regarding I have been through the hands of, and have a feu of an existing dwelling-house. The stood on the shelves and lain on the desks merchant had made some money in his thrifty of, many conveyancers in my apparently Scottish way and wished to become a laird interminable career. I have been so often himself. But I often wonder if the feuars referred to in respect of the feu-duties and with whom I have been connected could, casualties and of the other estate matters of properly speaking, be called "lairds.” In a which I am a record, that it pains me to think

. sense they are merely tenants, for although of the trouble I give to each succeeding generathey hold conveyances of the dwelling-houses, tion. I live to be looked at, examined, and they pay ground-rent or feu-duty to another perused. All the knowledge I possess has to laird who, as their superior or overlord, also be dragged from me; deductions are made, has an interest in the houses. The Scottish and conclusions drawn from the materials of feudal system is peculiar in that respect, for which I am composed. Through it all I am it does not permit of outright purchase. Even silent. Although I live and flourish I cannot if all overlords or subject - superiors were speak to or guide those who consult me, or eliminated, owners of houses would merely make things easy for them by imparting to fall back on the Crown as superior.

them the discussions I have listened to in the That transaction between the village ages which have passed. I am an example merchant and the laird established me, and of the phrase scripta litera manet ; vox emissa although both of them have long ago shuffled volat.” Living in the chambers of the law off this mortal coil you may still read on my agents for successive proprietors of the estate, signboard “ Established in 1681.' A charter the transactions connected with which are was duly granted and the first feuar was given recorded in me, I have listened to discussions complete possession of his acquisition in the about the policy of the estate and the necessity ceremonious manner required by the law of for judicious repairs and improvements if it was the day. Other inhabitants of the village to be handed down to future generations as followed the lead of the first feuar, and I gradu- something of which one might justly be proud. ally increased in size and importance as all the Clerks and lady-typists at work on me have different charters were incorporated in me. discussed their own private affairs, their future

When I came into being the feudal aristocracy business careers, the careers of their masters, reigned supreme; they sat in Parliament and and all the amenities which went to make up made the laws. Ordinary men could only their lives. But alas ! the spoken words flew look for protection and the means of subsistence away, and, although my desire to do so is to the large landed proprietors. That was strong, I cannot convey to you the manner of the time when the landed gentry and their speech of each successive generation, nor can legal advisers were exercised in their minds I demonstrate to you the changes in language as to how landed estates could be effectually which have taken place since my pages have retained in the same families and transmitted gone on increasing. The disuse of Latin, the from generation to generation without spot changes in the styles of charters, in the style or blemish. Sir George MacKenzie, the Lord of handwriting, the transition from quills to Advocate, whose zeal for the suppression of steel pens, from handwriting to typewriting, the Covenanters earned for him the name of you see in me; but it pains me to know that the “ Bloody MacKenzie,” was pondering over my limitations begin when I could be most what ultimately took shape as the Entail Act, interesting. 1685. That piece of legislation was a fruitful In my early days it was the fashion to source of litigation in the years that followed, abbreviate the date, and such abbreviation has