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United Kingdom House of Lords Decisions |
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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> John Cuninghame of Enterkine v. The Hon. Katherine Hamilton, Relict of Wm. Cuninghame of Enterkine, the 's Mother [1717] UKHL Robertson_187 (8 June 1717) URL: http://www.bailii.org/uk/cases/UKHL/1717/Robertson_187.html Cite as: [1717] UKHL Robertson_187 |
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Page: 187↓
(1717) Robertson 187
REPORTS OF CASES ON APPEAL FROM SCOTLAND.
Case 43.
Subject_Tenor. —
The tenor of a lost deed of remuneration to a wife over certain lands, for part of her jointure secured upon other lands renounced by her, found to be proved by an instrument of sasine; a deed in which the remuneratory deed was recited, and a slender proof by witnesses:
It was not necessary to prove the casus amissionis in this case:
The defender having claimed a proof that his mother, the pursuer, in his minority, had intromission with all his father's deeds and writings, the same is refused.
By the marriage contract between the appellant's father William Cuninghame and the respondent, in December 1676, John Cuninghame of Enterkine, the appellant's grandfather, in consideration of the said marriage and of 777 l. sterling, the respondent's portion, did settle upon her a life-rent of 275 l. sterling, payable out of the barony of Monktoun and other lands, in which she was duly infeft.
About seven years after the marriage it became necessary to sell the said lands of Monktoun, and on the 11th of October 1683, the respondent joined in a deed with her husband, legally ratified by her, to re-convey the said lands to the grandfather. But she retained a life-rent of 100 l. issuing out of other lands settled for that purpose by her marriage contract.
The respondent states, that in consequence of her renouncing her interest in the lands of Monktoun, the appellant's father did, in recompence and remuneration of the lands so renounced, execute a deed, fettling upon the respondent the lands of Enterkine and others in life-rent; and that upon this deed she was duly infeft, on the 21st October 1683, and the sasine recorded the 20th of November thereafter: That after her husband's death in 1690, she entered to possession of the lands of Enterkine, and continued without interruption in the same; but having lost the remuneratory deed the appellant questioned her right, and she, in December 1711, commenced an action for proving the tenor of the lost deed, before the Court of Session against the appellant.
The appellant at first insisted that the respondent should prove the casus amissionis of the deed, and he himself craved a proof that the respondent had had a total intromission, with his father's title-deeds after his death, before proceeding to a proof of the tenor: But the Court, on the 13th of February 1712, allowed the respondent to proceed in her action. Accordingly, she insisted upon several adminicles or vouchers to prove the tenor of the deed; These were, 1st. The probability that the respondent should
Page: 188↓
After a hearing of the cause, the Court, on the 18th of June 1713. “found the tenor of the remuneratory or compensatory right and disposition libelled or granted by the said William Cuninghame of Enterkine, with the consent of John Cuninghame of Enterkine, his father, to and in favour of the respondent, of the date and contents particularly above-mentioned, made up and proved, and therefore decerned and declared the said deed to be a sufficient and valid evident, and of as great force and effect as if the said remuneratory deed itself were yet extant, and not omitted and lost casu fortuito.” The appellant reclaimed two several times against this interlocutor, but the Court adhered to the same.
Entered 21 Feb. 1716–17.
The appeal was brought from “an interlocutor of the Lords of Session of the 18th day of June 1713, and the affirmances thereof.”
Heads of the Appellant's Argument.
When this action was first commenced, the Court did refuse the appellant the benefit of proving that the respondent had a total intromission, with his father's whole writs and evidents when he the appellant was under age. This probation, if it had been allowed, might in all probability have cleared this affair.
The law of Scotland, and the constant practice of the Court of Session, require that when issue is joined and no proof made of the casus amissionis, the action is to be dismissed; yet the Court allowed the respondent to proceed in her action without proving the casus amissionis, and to proceed in the proof of the other parts of her libel.
The respondent has proved nothing of the other parts of her action by the adminicles or vouchers she brought into the court below; for
Page: 189↓
1681, c. 5.
1st. The conveyance by the appellant's grand father can be no voucher. This conveyance contains nothing of the substance of the deed pretended to be loft, only the additional lands claimed by the respondent are in the deed, partly interlined and partly written on the margin thereof, not subscribed; nor are they written with the same hand or ink with the rest of the conveyance, as evidently appears by inspection. Such interlineations and unsubscribed margins are by the law of Scotland entirely null and void, as appears by the act of parliament 1681. c. 5. wherein it is statuted, “That all writs to be subscribed hereafter, wherein the writer and witnesses are not designed, shall be null.” But neither the writer of this interlineation and unsubscribed margin, or who were witnesses thereto, are designed in this conveyance of 16th August 1683.
Nor does the interlined conveyance recite the substance of the said loft deed, or any clause of it: It mentions, too, that the deed pretended to be lost was of the same date with the said conveyance; yet by the oath of William Baillie, the respondent's own witness, it appears that he was a witness to the said conveyance the 16th of August 1683, but depones that at that time there was only a deed to be done in favour of the respondent. And further, though the said conveyance mentions also in the body thereof, that the respondent's renunciation of Monktoun is likewise of the same date with the deed; yet notwithstanding the renunciation proves itself to have been made two months after the date of the said conveyance, viz. on the 11th of October 1683.
2d. Neither can the respondent's infeftment be admitted as a voucher of the substance and reality of the deed pretended to be lost, because it is not a notary's business to enquire into the substance or verity of deeds, for he can infeft persons at any distance of time after signing, without making any enquiry whether the deed be true or false. But it is evident from the said instrument of sasine that there was no such deed as pretended by the respondent, and that the notary gave the respondent infeftment upon the foresaid interlined conveyance only. For in the clause of Having and Holding the interlined conveyance only is narrated, and also it appears that there was a blank left in the instrument of sasine which should have been filled up with the date of the pretended deed (if there had been one); but this blank is filled up ex post facto with the date of the interlined conveyance only, which neither contains the substance of the pretended deed, nor is there any precept in this interlined conveyance for infesting the respondent. And therefore the date of the said interlined conveyance was ignorantly inserted in the blank which is in the instrument of sasine, instead of the date of a deed that had a precept or warrant for infesting the respondent. The Court below has always rejected the instruments of notaries as a proof of the substance and verity of deeds, as appears in the cases decided 14th June 1667, Harroway v. Haitly, and Corsar v. Durie in Dirleton's decisions, and the case decided 15th July 1675, Phumerton v. Lutefort in Stair's decisions.
Page: 190↓
3d. Nor is there any part of the tenor of the deed pretended to be lost proved by the respondent's two witnesses, viz. Mr. Baillie and Mr. Campbell. From their depositions it appears that they prove nothing as to the reality, the tenor, the date, the writer's name, the parties subscribing, or the witnesses subscribing to the said deed pretended to be lost. These are the essentials of every deed, and the proving of them in such a case as this is absolutely required of a pursuer by the law of Scotland.
Heads of the Respondent's Argument.
Though the respondent had intromitted with her husband's papers, as she never did, and had got the remuneratory right there, yet it was still a deed belonging to her, and was the same as if it had been lying by herself, since the taking infeftment upon it was a clear evidence of her husband's intending it for her security. And that she had again renounced that right in favour of her husband, is not probable; for the law of Scotland appoints such renunciations to be recorded within sixty days after they are executed, and if there had been such, the appellant might have got an office copy of it.
Stair's Decisions.
The proving of the casus amissionis in all cases of proving the tenor of a deed is not necessary. It is indeed reasonable to be done in cases where the execution of a deed is the only solemnity required, and the retiring or cancelling is a sufficient release. But in rights of lands, as this is, which require other solemnities than the deed itself, such as sasine, &c. the retiring of the deed is not a sufficient discharge, because the instrument of sasine remains upon record. So that nothing but a formal discharge or renunciation could extinguish that right, as is observed by Lord Stair in his Institutions, and it is also cleared by a decision of the Lords of Session, 26th July 1662, Lady Miltoun against her Husband; and therefore in such cases the presumption is that the right was truly lost.
Though the appellant pretended that the instrument of sasine was only the assertion of a notary, and would not prove any thing; yet these instruments being admitted by public authority, great deference and faith is had to their veracity. And the instrument of the notary is not the only voucher in this cause, though if there were no other proof even that would be sufficient. The precedents quoted by the appellant differ from the present case: the respondent renounced her jointure in which she was secured by her marriage-settlement, which was the onerous cause of granting her a remuneratory right. But all suspicion of any kind is certainly taken off by this, that sasine was given to the respondent upon the remuneratory right by her husband's order seven years before he died by the same notary, and in prefence of the same witnesses who infeft the appellant in the fee of the estate; and immediately thereafter both instruments were put in the public record by the said notary.
But another proof of the deed in question (and which of itself is sufficient) was the deed of settlement, made upon the appellant,
Page: 191↓
There is no occasion for witnesses, where the deed and Solemnities are proved by writing, as in this case they are by the instrument of sasine, and deed of settlement to the appellant.
Judgment, 8 June 1717.
After hearing counsel, It is ordered and adjudged, that the petition and appeal be dismissed, and that the interlocutor and affirmances thereof complained of in the said appeal be affirmed.
Counsel: For Appellant,
Dun. Forbes.
Spencer Cowper.
Rob. Raymond,
For Respondent,
N. Lechmere.
Will. Hamilton.
