Scottish Court of Session Decisions

Subject_1 LOCUS POENITENTIAE.
Subject_2 SECT. III.

What writing sufficient to bar Locus Pænitentiæ. - Ubi res not est integra. - Rei interventus. - Oath. - An informal writing does not bar Locus Pænitentiæ. - Promise to ratify an informal writing bars Locus Pænitentiæ.

Malcolm M'Farlane
v.
James Grieve

Date: 22 May 1790
Case No. No 51.

The acknowledgement of subscription, not sufficient to supply the want of any of the statutory solemnities of deeds.

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M'Farlane granted a lease to Grieve. Before possession had followed, however, the former instituted a reduction of it on this ground, that it had been omitted to insert in the deed the name and designation of the writer, a requisite, it was said, essential to its validity by the statute of 1681. The defender

Pleaded; That statute, it is true, has enacted, “that all such writs wherein the writer and witnesses are not designed, shall be null, and are not suppliable by condescending upon the writer, or the designation of the writer and witnesses.” But though the term nullity does in our statute law sometimes import an intrinsic nullity, yet generally by that word nothing more is meant, than a circumstance affording an exception or reason of reduction. Thus, deeds null according to the terms of the acts 1621 and 1696, are yet never set aside without a formal process. In like manner, with respect to entails, many contraventions are expressly declared by the statute of 1685 to infer an ipso facto forfeiture, but in order to give effect to them, a declarator is required.

If such were not the case, it would be pars judicis to advert to objections of this kind, and no decree in absence where they occurred would be of any avail; whereas in truth suspension is not less necessary there, than in regard to other decrees. Nor would a deed null in any other sense he capable of homologation, which, however, those defective in the statutory formalities in particular have ever been found to be; 20th November 1627, Lockie, voce Writ; 7th March 1612, Boswell contra Kinninmount, Ibidem; 23d November 1699, Grierson and Mackie contra Scott, Ibidem; Sinclair contra Sinclair, 17th February 1715, Ibidem.

When the statutes, therefore, relative to the formalties of writings employ the same expresion, their purpose is to denote an exception or ground of reduction, which of course the party may voluntarily pass from, or be debarred from pleading. But surely there can be no stronger bar to such an exception, than the acknowledgement of subscription; which occurs in the present case, nothing being here objected to, but the mere omission above mentioned.

The primary end of all the statutes on this subject is the preventing of forgery. As the ancient mode of authenticating writings by the seal merely of the party, was found to give frequent occasion to fraud, the additional requisite of subscription was introduced by the earliest of those statutes, 1540, cap. 117. In like manner, because ‘falsities encreased daily within the realm,’ by reason of ‘the bodies of contracts’ being written, by persons “not commonly known,” that of 1593, cap. 179. enjoined, that the name and designation of the writer should be mentioned in the deed.

Nor when the act 1681 declared the omission of this and other requisites “to be not suppliable by a condescendence,” was the spirit of that enactment different. From the consideration of the lubricity of human testimony, that mode of supplying the defects of writings was thus precluded; but the special exclusion of it, cannot surely imply that all other means are rejected. It rather indeed imports the contrary. And of all means of ascertaining the verity of deeds, the most complete and satisfactory is evidently acknowledgement of subscription.

Holograph writings are not excepted verbatim in any of the statutes; but if they are held to be so by implication, because of the little probability of falsehood in such cases, a fortiori ought those writings, which are acknowledged to be true and where there is no possibility of falsehood.

If it be supposed, that the statutory requisites in the form of deeds were in general also intended for the purpose of solemnity, this end, it must be owned, was sufficiently attained by the presence and the subscription of the witnesses. But in fact, as the presence of the writer is not required at the execution, the sole object of that particular circumstance must have been to guard against falsehood.

In conformity to these observations, many decisions have been pronounced. Thus where a contract was null in the sense of the statute of 1681, as bearing the subscription of one witness only, the defect has been found to be suppliable, by referring the verity of the subscription to the party's oath; hall, 26th December 1695, Beattie contra Lambie, voceWrit. And in each of the following cases, the grounds of the defender's plea have been recognised. 22d June 1611, Redpath against Huntly, voce Writ; 29th November 1609, Weir against Moffat, Ibidem; 8th July 1623, Sheriff of Cavers against Henderson, Ibidem; 16th January 1739, Crawford against Wight, Ibidem; 4th July 1739, Shiel against Crosbie, Ibidem; 18th December 1739, Goodlet Campbell against Lennox, Ibidem; 5th June 1742, Campbell against M'Lauchlan voce Proof; 23d November 1752, Duke of Douglas against Littlegill, voce Writ; 20th December 1746, Fogo against Milliken, Ibidem; 8th June 1748, Neil against Andrew, Ibidem; 17th June 1748, Rutherford against Feuers of Bowden, No 44. p. 8443; 5th December 1765, Henderson against Murray, voce Writ; 19th January 1779, Clark against Ross, Ibidem. See also Banktit. II. § 47; Erskine, b. 3. tit. 3. § 47.

Answered; It is for the purpose of solemnity, as well as of proof, that formal writings are required by law. In particular, “solemnity in writ is essential to the perfection of dispositions to heritable rights, and of tacks,” Stair, b. I. tit. 10. § 9. But a null or informal writing never can produce such solemnity. The end to be attained by that prescribed formality, is to promote due reflection and deliberation in transactions of importance. An informal deed rather denotes carelessness and want of attention.

Such a null writing cannot be even rendered probative. In particular, it cannot, by the acknowledgement of subscription. Whenever recourse is had to this, or, which is the same thing, to oath of party, it must be received as subject to every intrinsic quality; such as that of force, of fear, or of ignorance of the contents of the writing. Since the import of it may be thus quite contrary to that of the writing, it is the oath alone that is probative, and not the writing, as thereby rendered such. Besides, informal writings are by express statute declared “to make no faith,” an enactment which is not to be repealed by any acknowledgment of a party.

By the same rule, in every case where the law requires writing for an essential solemnity, as in that of sasine for example, it might with equal reason be said, that since writing is only a solemnity intended for proof of deliberate consent, it should always be superseded by the superior evidence of the party's oath.

The nullity of a deed therefore remains after the acknowledgment of subscription; and it is a mistake to suppose that it has no other operation than by affording an exception, which is debarred by such acknowledgment.

It is to be remarked too, as the reason why it is not pars judicis to refuse action on a null writing, when the objection is not made by the defender, that every writing, whether valid or null, implies a verbal contract, which, though the subject of it be land, is always, while acquiesced in, a good ground of action; as the want of writing affords only locus pænitentiæ.

Nor is it of more importance in this argument, that homologation has been found to supply the defects of a null deed. This does not happen by imparting perfection to the writing, which continues void as before; but it is the act of homologation that establishes the contract, being a renewed expression of consent in the strongest manner rebus et factis, which will bind parties, when neither a verbal contract nor an informal deed would. A verbal contract concerning heritage may be resiled from; but acts of homologation, and rei interventus, render the contract equally binding as if it had been expressed by the most regular deed.

The decisions of the Court are extremely uniform, in respect to the principle, that a deed defective in solemnity cannot be supported by the acknowledgment of subscription. Even prior to 1681 this was found; Durie, 14th February 1633, Ranken contra Williamson, voce Writ; Durie, Spottiswood, 11th February 1634, Cassimbro contra Irvine, Ibidem. But the subsequent decisions to the same effect are of more importance. Harc. No 207. January 1686, Gordon contra Macpherson, voce Writ; Fountainhall, November 1698, Campbell contra Robertson, Ibidem; 21st November 1704, Kirkpatrick contra Ferguson, Ibidem; 15th July 1707, Abercromby contra Innes, Ibidem; 4th February 1710, Logie contra Ferguson, Ibidem; 3d July 1711, Short contra Hopkin, Ibidem; 22d December 1710, and 11th January 1711, Gordon contra M'Intosh, Ibidem; 4th February 1725, Campbells contra Campbell, Ibidem; 22d February 1728, Strachan contra Farquharson, Ibidem; Innes contra Commissioners of Supply, No 13. p. 2079.; June 1730, Home contra Dickson, voce Writ; 12th December 1738, Davidson contra Charteris, Ibidem; 20th July 1744, Liddell contra Dick's Creditors, No 95. p. 5721.; 30th June 1758, Ferguson contra M'Pherson, voce Writ; 2d February 1761, Young contra Ritchie, Ibidem; Park contra M'Kenzie and Lawson, No 47. p. 8449.; Creditors of Young contra Little in 1763,* and Bisset contra Stewart in 1765, mentioned in Erskine's Institutes, B. 3. T. 2. § 2.;* 17th December 1766, Russel contra Paisley and Little, voce Writ; 6th July 1768, Sheddan contra Spreul Crawford, No 48. p. 8456.; 21st July 1772, Crichton and Dow contra Syme, voce Writ; 4th July 1781, Grierson contra King, Ibidem; 25th November 1782, Wallace contra Wallace, Ibidem; 9th December 1785, Walker contra Duncan*; 23d June 1786, Edmondston contra Lang, voce Writ.

The Lord Ordinary pronounced this interlocutor, “In respect of the decisions of the Court, and on that account alone, finds the tack libelled void and null, and reduces,” &c.

A reclaiming petition having been presented, and answers given in, a hearing in presence took place, by appointment of the Court.

Several of the Judges thought, that the statute, by debarring condescendences in particular, did not mean to preclude the more certain test of the verity of deeds by acknowledgement or oath of party. The case of holograph writings,

* See Appendix.

it was argued, shews this; as these, notwithstanding the statute, are valid without witnesses; their verity being otherwise: ascertained, although not near so completely as by such acknowledgement.

It was likewise observed; Though writing be de essentia of deeds respecting land property, yet no part of the contents of the testing clause comes under that description. It is not comprehended in the verba solennia of writings; which is evinced by this, that the name of the inserter of that clause is not required to be mentioned. Its sole purpose is for authenticating deeds, by the naming and designing of the witnesses. It is therefore useless in those writings, to authenticate which witnesses are not necessary; such as holograph deeds’ and, surely much more, deeds of which the subscription is acknowledged. And if the want of this clause altogether would have been of no consequence, a partial want, or a defect in it, cannot be supposed of more significance. Besides, the deeds spoken of in the statute as ‘not suppliable by a condescendence,’ were evidently those only in which the subscription of witnesses was required.

The Court, however, were unanimously of opinion, that in competitions of creditors effect ought never to be given to the acknowledgment of subscription, so as to affect any jus quæsitum arising from the informality of deeds. And

A majority considered, that no deeds whatever were probative, but those executed with all the formalities required by statute. Were the oath of party, it was observed, made to supply the want of the statutory requisites, the consequences would often be very unjust. Not only in general, with respect to all bargains to which writing is essential, the knave would be free and the honest man bound; but in the case of mutual contracts, when one of the parties happened to die, his heir might either be liberated, or hold the other party under the obligation at his pleasure; and in that of co-obligants, one of them surviving might be made liable for the whole debt, while his claim of relief against the other correi would by their death be cut off.

The Lords therefore adhered to the interlocutor of the Lord Ordinary, reducing the tack in question.

Similar decisions were given in several other cases determined at the same time.

Lord Ordinary, Dreghorn. Act. G. Fergusson, M. Ross. Alt. Solicitor General, Wilson. Clerk, Sinclair. Fol. Dic. v. 3. p. 395. Fac. Col. No 130. p. 252.