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THE CONVEYANCING (SCOTLAND)
BY CHARLES MACKINTOSH, B.A., LL.B., ADVOCATE.
This Act, which received the Royal Assent on 1st August 1924, is one of a series resulting from the deliberations of a committee appointed some twelve years ago by the Lord Advocate of the day, now Lord Strathclyde, to consider proposals for the further simplification of conveyancing in Scotland, the term conveyancing being interpreted in its widest sense. The committee was composed of representatives of the leading legal societies in Scotland, and was presided over throughout by Sir George Paul, D.K.S., as its chairman. The list of Acts which, up to date, are the fruits of its labours, is as follows:
1. The Entail (Scotland) Act, 1914;
3. The Intestate Husband's Estate (Scotland)
4. The Married Women's Property (Scotland) Act, 1920;
reforms, from the conveyancing standpoint, probably the most far-reaching are those which authorise trustees, including judicial factors, at their own hands to sell heritage unless specifically restrained by the trust deed, and extend the power of the Court to relax restrictive provisions imposed by trusters. Important and useful reforms are also made in the law dealing with fiduciary fees. Next comes the omnibus Act, the Conveyancing (Scotland) Act, 1924, which it is the purpose of this paper to discuss.
Not unnaturally the Conveyancing Act has been subjected to more criticism in its Bill stages than any of its five predecessors in the series. Each of its numerous proposals was justifiable matter for careful discussion and report. Moreover, its omnibus nature-perhaps inevitably-gave rise to controversy as to whether certain proposed changes in the law were matter proper to be included in a conveyancing Bill, however desirable in themselves. The rival claims of systematic unity and practical expediency had each to be considered and given due weight to, and the various interests affected dealt with in the light of the ruling principles of simplicity and economy. With a subject-matter at once so technical and so varied the passing of this measure into law could hardly have been otherwise than attended with difficulties and a certain amount of adverse criticism, and on one or two points at any rate the effects of compromise can be clearly detected. The Act, however, as it has emerged from Parliament, is a courageous step towards the simplification and modernisation of our system of conveyancing, and all credit is due to the skill and industry of its authors and to Mr F. C. Thomson, K.C., M.P., and to Lord Dunedin, who in the House of Commons and in the House of Lords respectively navigated the Bill to port, and to the Lord Advocate, whose influence, though less apparent, was no less material to its successful passage.
5. The Trusts (Scotland) Act, 1921; and 6. The Conveyancing (Scotland) Act, 1924. A certain persistency of output is here exhibited, with interruptions caused by the war and recently by pressure of time arising from the number of other legislative proposals before Parliament. Happily, the series has been unaffected by changes in political power, the whole of the Acts having been passed of consent in a decade which has witnessed an unparalleled diversity of political administrations. There is a marked contrast between the last of the six Acts and its five predecessors. Each of the five dealt substantially with one subject, whereas the Act of 1924 is rather of the nature of an omnibus Act. The Entail Act provided for the gradual extinction of strict entails and of trusts containing entail-like restrictions-a process which has made marked progress since 1914. The Feudal Casualties Act provided for the extinction of feudal casualties and duplicands and all such like payments, save annual feu-duty. So much progress has already been made in this direction that the year 1929 will in all probability see the process complete. The Intestate Husband's Estate Act provides machinery for giving to a widow the benefits to which she is entitled under the similarly named Act of 1911. The Married Women's Property Act carries on the work of the Act of 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
The importance of this Act from the point of view of the legal profession is self-evident, and the Act will doubtless be expounded in detail in due course. Here it is only proposed to summarise, without embarking on technical detail, what it purports to do; and first it may be convenient to advert to subjects dealt with in the Act which are scarcely within the scope of conveyancing in its narrower sense, and require considerations of expediency and existing statutory precedents to justify their inclusion in a Conveyancing Act.
persons under majority or subject to legal disability, but so as not to increase the period beyond thirty years in all. The existence of this relaxation has been found in practice to make the period of thirty years the rule for positive prescription rather than the exception, thereby to a large extent defeating the main purpose of the enactment. The present reform consists in effect in repealing the relaxation, and thus in actual fact reducing the period to twenty years in all cases, excepting servitudes, public rights of way, and other public rights, as to which no change has been made in the existing law either by the Act of 1874 or by the present Act.
The Entail Amendment Act, 1848, section 47, provided against future perpetual trusts of land, i.e. trusts dated on or after 1st August 1848, and by section 8 of the Entail Amendment Act, 1914—one of the present series—provision is made for terminating those dated before 1st August 1848. Future perpetual trusts of moveable estate were dealt with by section 17 of the Entail Amendment Act, 1868, and provision made for those dated on and after 31st July 1868 being terminated. This enactment is repeated in section 9 of the Trusts (Scotland) Act, 1921. The present Act completes the process by providing for the termination of perpetual trusts of moveable estate dated prior to 31st July 1868, provision being made for preserving existing interests. The section in question appears to be modelled on section 8 of the Entail Act of 1914.
A corresponding reduction-from forty to twenty years has also been effected in the long negative prescription; not, indeed, in reference to all claims, but in reference to all 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 munication, the period of twenty years in the twentieth century in Scotland is more than equal to forty years there at the time when the long prescriptions were enacted.
(b) The law of succession is also to some extent dealt with by the Act. The intricacies and anomalies of the law which held certain investments to be heritable for certain purposes and non-heritable for others are well known to all practitioners. The result was that different tests applied as to the investments which were subject to a widow's jus relicta (or a widower's jus relicti), and to the legitim of a child. Much trouble and practical difficulty, and not infrequently acrimonious disputes, arose from this state of matters. This is remedied by the enactment which applies the same test, that applicable to legitim, to all three purposes.
Again, as to terce and courtesy there are important modernising and simplifying enactments. The archaic processes of serving and kenning are abolished, the law which made the rights of parties depend on the accident of infeftment or non-infeftment is abrogated, and terce and courtesy are convertible into definite and redeemable annual sums.
The simplifications which have here been effected will be readily recognised by trustees and all who have to do with the administration of trust estates, and the rights concerned have been made to operate with greater fairness in view of the modern conditions under which property both heritable and moveable is held.
(c) The Act also gives the finishing legislative touch to the process of providing for the termination of all permanent private trusts.
owners may effectually convey property, a short statement of the title of the granter being contained in the deed of conveyance to be granted by him. This statement has the effect hitherto attained by notarial instrument and eliminates an intermediate and unnecessary step. Moreover, in cases where this new form may be inapplicable, a shorter form of instrument called a notice of title has been provided.
The shortening of deeds applicable to heritable estate has been a main object aimed at by the Act. This has been sought by encouraging the further use of, and in certain respects abbreviating, descriptions by reference, and by the provision for making plans part of the Register of Sasines. Most of all has this shortening been sought for in the case of security deeds. One enactment conducive to this end renders it needless to refer in security writs to conditions of tenure. This ought to result in the adoption in more cases of descriptions by reference in ordinary bonds and dispositions in security, while the total elimination of descriptions of the property from assignations and discharges of heritable securities and the shortening of deductions of title ought to disencumber these writs of much useless verbiage. Further, the simplification of, and the application of elasticity to, procedure for calling up bonds and selling or otherwise using diligence under them will, it is hoped, prove advantageous to borrower and lender alike. The application of forms of feudal conveyancing to registered leases is also a simplifying reform.
As regards certain minor matters the Act
abolishes and disencourages what has become obsolete or superfluous. Sasine ex propriis manibus disappears, ratifications by married women are to be no longer required, real warrandice in due time will die, and the peculiar process of interdiction is to cease. A further step towards modernity consists in the prohibition of grain feu-duties in future feus; and the conversion into cash of existing grain feu-duties and multures under a scheme set forth in the Act will simplify titles, as also will the ultimate commutation or abolition of carriages and services."
The tale of reform is by no means told. Always in the direction of enabling, shortening, and simplifying, it extends to warrants of registration, the consolidation of property and superiority, the notarial execution of deeds, the allocation of feu-duties, and the transmission of personal obligations of bonds in gremio of a conveyance. The provisions of the Act by which the effect of an omission in a deed to refer to conditions of tenure contained in another deed is minimised, and by which the penal consequences may be evaded and the omission rectified, will be perused with thankfulness by those whose duty it is to scan title deeds for the discovery of technical defects. Ground annuals are dealt with in detail. The statutory provisions on this subject do not lend themselves to condensed statement, but are in harmony with the remainder of the Act. The subject of law agents' lien is also touched upon, and personal interest will doubtless induce law agents to study with care the provisions of the section which restricts their lien on title deeds as against a heritable creditor.
Enough has been written to shew the comprehensive scope of the Act and the desirability, indeed the necessity, for the careful study of its provisions by every conveyancer, if possible, with the assistance of a detailed exposition of the Act. But on one more subject it seems necessary here to touch, namely, the matter of searches. As is well known an effort was made in the Conveyancing Act of 1874 to diminish the expense of searches by restricting to five years the period of search required in the personal registers on a transfer of heritage. The attempt, however, was ineffectual, as the five-year restriction imposed by that Act was limited to inhibitions, whereas other matters such as bankruptcies, interdictions, and so forth entered the personal registers. Thus, while the restrictive enactments relative to inhibitions contained in the 1874 Act no doubt considerably facilitated conveyancing, the necessity for searching in the personal registers for forty years remained as before, and not only had the search to be made against the vendor, but also
against all previous proprietors within the prescriptive period from a date forty years previous to the transaction down to the dates of their respective divestitures. The effort to limit searches in the personal registers to five years has been renewed in the present Act in a more determined fashion. All entries in the personal registers are now to prescribe in five years, and, with the exception of notices of bankruptcy, they cannot be kept up by being renewed each five years as could be done with inhibitions under the 1874 Act. It would appear, therefore, that in the future searches in the personal registers can with safety be limited to five years. A word of caution is, however, necessary. The enactment cannot in the nature of things mature until five years after 1st January 1925, and when that time comes, while the search may be limited to five years, careful consideration is required as to what names must be included in it.
Finally, let us ask, is the process of reform in the regions of law to which we have been referring for the present complete ? No conveyancer will answer this in the affirmative while the matter of teinds remains to be dealt with. Promoted from altogether different motives, the Church of Scotland Bill now before Parliament gives promise of operating incidentally as a conveyancing reform of firstclass importance. Moreover, in these days of equality of women, is it to be expected that for long one-half of the electorate of Scotland will acquiesce in the withholding from them of equal rights in heritable succession already conceded by Parliament to their English sisters? Is our system of registration of land rights perfect? No informed person can maintain the affirmative. Is the feudal system itself, or what remains of it, immune from criticism? Surely not. And as soon as the Feudal Casualties Act has done its work, do not the circumstances call for a great Consolidation Act, by which at once the statute book will be purged of a great mass of obsolete matter and the relevant living legislation will be collected and co-ordinated in one statute, to the relief of the profession and the benefit of the public?
NEW SCOTTISH K.C.'s.-The King has been pleased, on the recommendation of the Secretary for Scotland, to whom the names were submitted by the Lord Justice-General, to approve of the rank and dignity of King's Counsel to His Majesty in Scotland being conferred on Mr John Buchanan Young, advocate; Mr Jas. Macdonald, advocate; Mr John Francis Carmont, advocate; Mr Archibald Crawford, advocate.
MR J. W. WYLLIE, solicitor, Royal Bank Buildings, Kinnoull Street, Perth, intimates that he has assumed as a partner Mr J. T. Henderson, solicitor, who has been his chief assistant for the past eighteen months. The business will be carried on under the firm name of Messrs J. W. Wyllie & Henderson.
MESSRS RICHARDSON & GEMMELL, solicitors, Haddington and North Berwick, intimate that the firm will be carried on by John Paris Steele, B.L., solicitor, who has been associated with the firm for over twenty years. He will be assisted by Mr William A. Douglas Murray. The business will be continued under the existing firm name.
THE death occurred suddenly on 17th August of Mr Gavin William Ralston, barrister of the Inner Temple, who was spending his honeymoon at Worth Matravers, near Swanage, Dorset, and who at the time of his death was walking along the road from Worth Matravers to Kingston.
Mr Ralston was married at the Temple Church, London, on 5th August to Countess Thais Makharoff, daughter of Countess Orloff and the late Professor Yarov Makharoff, who was killed by Bolsheviks. Mr Ralston was a member of the Faculty of Advocates, Edinburgh, and practised both in Glasgow and London. In 1900 and January 1910 he unsuccessfully contested West Fife in the Conservative interests. He came forward as an Independent Unionist at a by-election in the Central. Division of Glasgow in August 1915, but was again unsuccessful.
THE death took place on 19th August at a nursing home in Aberdeen of Mr David William Shaw, of Blackhouse, Ayr. Mr Shaw, who was in his 62nd year, was the eldest son of the late Mr Charles G. Shaw, County Clerk of Ayrshire. He was trained in his father's office, and, after qualifying as a solicitor, was assumed as a partner in the business. On the death of his father he took up business for himself and had established a good connection. His early association with his father brought him much in contact with county public bodies and public men, and he held the offices of Clerk to the Peace of Ayrshire, Clerk to the Ayr District Committee of the County Council, and several others. The clerkship to the District Committee he had relinquished, but he continued to be Clerk to the Peace at his death. He was factor for the Bute estates in Ayrshire and Wigtownshire, and had a similar connection with other estates in Ayrshire.
DECISIONS IN THE ENGLISH
Scriven Brothers v. Schmoll Fils & Co. Inc.
- A c.i.f. contract contained the following stipulation: No claims shall be valid unless made in writing within two weeks after the goods are delivered..... Goods arrived in dock are deemed delivered to buyers." Dispute arose over the quality of the goods which formed the subject-matter of the contract, and the buyers made a claim for bad quality more than fourteen days after the date of delivery of the documents, but less than fourteen days after the delivery of the goods to the buyers from the ship. The question was whether such claim had been timeously made. Held that the construction most consonant with the other provisions of the contract was that delivery meant delivery from the ship to the buyers; and that accordingly the claim had been timeously made.-K.B. Div. (Roche J.).-26th May 1924.
The Story of Our Inns of Court. As told by The Rt. Hon. Sir D. Plunket Barton, Bart., P.C., K.C., ex-Judge of the High Court of Ireland, and Charles Benham, B.A., and Francis Watt, Barristers-at-Law. G. T. Foulis & Co. Ltd. Price 10s. 6d. net.
Mews' Digest of English Case Law. Quarterly Issue. July 1924. This Part contains Cases reported from 1st January to 1st July 1924. By Aubrey J. Spencer, Barrister-at-Law. Stevens & Sons Ltd.: Sweet & Maxwell Ltd.
If I am not a most ingenious paradox" I think I may claim to be in some respects paradoxical. I am a creature of contrasts and a creator of contrasts. In me are combined the ancient and the modern. The older I grow the more modern I become. I am old, but fresh blood is transfused into me which keeps me young. I follow fashion while I retain my ancient styles.
and was inveighed against by the greatest . legal philosophers in respect of the evils it brought in its train.
The laird was not one of those who entailed his estate. He preferred to retain full freedom of action for himself and his successors in regard to his lands, and accordingly many documents which the law of entail rendered necessary in connection with lands which were entailed are not found in me. They found their way into the pages of my brother chartularies, and we talked of them when the chambers of the legal gentlemen, under whose care and protection we lived, were at rest after the labours of the day.
I have been through the hands of, and have stood on the shelves and lain on the desks
I first came into being in the year 1681 when a certain merchant in the village on the laird's estate approached the laird regarding a feu of an existing dwelling-house. The merchant had made some money in his thrifty of, many conveyancers in my apparently Scottish way and wished to become a laird himself. But I often wonder if the feuars with whom I have been connected could, properly speaking, be called "lairds." In a sense they are merely tenants, for although they hold conveyances of the dwelling-houses, they pay ground-rent or feu-duty to another laird who, as their superior or overlord, also has an interest in the houses. The Scottish feudal system is peculiar in that respect, for it does not permit of outright purchase. Even if all overlords or subject - superiors were eliminated, owners of houses would merely fall back on the Crown as superior.
That transaction between the village merchant and the laird established me, and although both of them have long ago shuffled off this mortal coil you may still read on my signboard Established in 1681." A charter was duly granted and the first feuar was given complete possession of his acquisition in the ceremonious manner required by the law of the day. Other inhabitants of the village followed the lead of the first feuar, and I gradually increased in size and importance as all the different charters were incorporated in me.
When I came into being the feudal aristocracy reigned supreme; they sat in Parliament and made the laws. Ordinary men could only look for protection and the means of subsistence to the large landed proprietors. That was the time when the landed gentry and their legal advisers were exercised in their minds as to how landed estates could be effectually retained in the same families and transmitted from generation to generation without spot or blemish. Sir George MacKenzie, the Lord Advocate, whose zeal for the suppression of the Covenanters earned for him the name of the "Bloody MacKenzie," was pondering over what ultimately took shape as the Entail Act, 1685. That piece of legislation was a fruitful source of litigation in the years that followed,
interminable career. I have been so often referred to in respect of the feu-duties and casualties and of the other estate matters of which I am a record, that it pains me to think of the trouble I give to each succeeding generation. I live to be looked at, examined, and perused. All the knowledge I possess has to be dragged from me; deductions are made, and conclusions drawn from the materials of which I am composed. Through it all I am silent. Although I live and flourish I cannot speak to or guide those who consult me, or make things easy for them by imparting to them the discussions I have listened to in the ages which have passed. I am an example of the phrase " scripta litera manet; vox emissa volat." Living in the chambers of the law agents for successive proprietors of the estate, the transactions connected with which are recorded in me, I have listened to discussions about the policy of the estate and the necessity for judicious repairs and improvements if it was to be handed down to future generations as something of which one might justly be proud. Clerks and lady-typists at work on me have discussed their own private affairs, their future business careers, the careers of their masters, and all the amenities which went to make up their lives. But alas! the spoken words flew away, and, although my desire to do so is strong, I cannot convey to you the manner of speech of each successive generation, nor can I demonstrate to you the changes in language which have taken place since my pages have gone on increasing. The disuse of Latin, the changes in the styles of charters, in the style of handwriting, the transition from quills to steel pens, from handwriting to typewriting, you see in me; but it pains me to know that my limitations begin when I could be most interesting.
In my early days it was the fashion to abbreviate the date, and such abbreviation has