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PAPERS OF THE SCOTTISH LAW AMENDMENT SOCIETY.1 "THE CONVEYANCING (SCOTLAND) BILL, 1873," AND "THE LAND RIGHTS AND CONVEYANCING (SCOTLAND) BILL, 1873."

Committee.- MESSRS. JOHN CLERK BRODIE, JOHN CARMENT, DONALD CRAWFORD, J. C. LORIMER. MR. BRODIE, Convener.

THIS is the fourth Session of Parliament in which a Bill has been introduced by the Lord Advocate to improve the system of conveyancing in Scotland, and it is to be regretted that a measure so much required should not have been earlier passed.

The present measure does not differ in principle from the Bill of last year, but it has been altered in some of its details, and the alterations are of considerable importance.

In many respects it is greatly improved :

(1.) It no longer requires that a notarial instrument to complete the title of an heir shall set forth any evidence, but limits it to a simple statement of facts.

(2.) It more clearly preserves subsisting titles as titles to the superiority estates defined in the Bill.

(3.) It gives to superiors, as well as to vassals, right to redeem casualties.

(4.) It limits the Burgh Registers of Sasines to land at present held burgage.

(5.) It omits the clause in the Bill of last year, importing into Scotland the English Statute of Mortmain, -the English law on that subject being now sought to be introduced by direct provisions contained in the Lord Advocate's Entail Bill.

Most of these alterations were suggested by your Committee in their Report of last year, and they consider all of them to be improvements, and some of them, especially the first and fourth, very great improvements, on the Bill of 1872.

Your Committee deemed it unnecessary, in their Report on the Bill of 1872, to enter into details, believing that these be would carefully revised, and that the necessary alterations would be made by its framer after considering the suggestions which were offered by the various bodies of legal Practitioners. Some, however, of these suggestions, of great practical importance, your Committee regret to see have not been given effect to; and they therefore deem it proper to notice them, as well as some additions, of which they are unable to approve, to the Bill of last year.

Section 3. The definition of an estate of superiority contained in this clause is in addition to the definitions of it contained in

1 The papers selected for publication by the Council of this Society will, by arrangement, be published in the Journal of Jurisprudence; but the Society is not to be understood as becoming in any sense responsible for the other contents of the Journal; and the conductors of the Journal do not assume any responsibility for the style or opinions of the Papers of the Scottish Law Amendment Society.

VOL. XVII, NO. CXCVIII. - JUNE 1873.

Y

sections 2 and 40. There should be only one definition, and that contained in the 2d section seems the best.

Section 4.-The Charter of Novodamus, a most useful writ, and often a great saving of expense, especially to small proprietors, is unfortunately not excepted from the general abolition of charters by progress. This may possibly arise from such charters being viewed by the framer of the Bill as original grants, but they are classed by conveyancers as charters by progress, and besides have their origin in the system of tenure which it is a main object of the Bill to destroy. It is therefore most unsafe to omit an express reservation of Charters of Novodamus from the general abolition of charters by progress.

Section 5. It is opposed to the fundamental principles of our system of conveyancing that any conditions and covenants that do not appear on the public registers shall affect landed property in a question with third parties. This clause therefore should require that the conditions and covenants it refers to appear upon the Register of Sasines. Otherwise very mischievous consequences

must ensue.

The clause is also objectionable in so far as it applies to feus granted before the passing of the Act. It would have the effect of creating real burdens that do not at present exist, and would thus affect injuriously the private interests of individuals.

Section 8. It is believed to be the object of the Bill to abolish services of heirs; and of this the Society has expressed its cordial approval. But it is nowhere stated in the Bill in express terms, that service is abolished, and it would be well that this be done. If it be the intention of the Bill to abolish service there can be no ground for not abolishing it in express terms.

It has been frequently suggested by the profession that on the death of a proprietor of land, the Bill should provide expressly that his heir shall be vested with "a personal right" to such land. This is a legal term, the precise import of which is well ascertained and well known to conveyancers, and the use of which supersedes the necessity of any definition of the effects to flow from it. It is quite different from the "vesting of the estate," the expression used in this clause of the Bill, which has also a fixed meaning in conveyancing, different from that of vesting a personal right to land.

The clause should enact that, immediately on the death of the ancestor, the heir shall be vested with a personal right to his estate, and have the same rights and be subject to the same liabilities, in every respect, as if he had obtained decree of service as heir according to the form at present in use.

Section 12. This section differs from the corresponding section of the Bill of last year in substituting a decennial for a vicennial prescription. Your Committee do not approve of this. Prescription is of no use to one whose title is good. Its effect is to deprive the true owner, and to change a bad title into a good one. Possession for twenty years is not too long to require to effect such results. Ten years is not enough. There is no reasonable ground for treating with more favour the title of one who, not being the true heir, has possessed as such, than the title of one who has purchased in bona fide and paid a full price. Yet the 25th section of this Bill requires twenty years' possession to fortify by prescription the title of a bona fide purchaser, and this section requires only ten years' possession to fortify in like manner the title of the wrong heir. The period should in both cases be twenty years.

Section 14. This is a most important clause, and unless it be carefully amended, abolition of service, one of the most valuable provisions of the Bill, cannot safely be enacted.

The Bill substitutes for service, which is a judicial act, an instrument prepared by the heir himself, or his agent, which amounts to no more than his own assertion that he is entitled to succeed to the property. This instrument being recorded by himself in the Register of Sasines is, by the Bill, to constitute a complete title. It would be manifestly wrong to allow such a title to be any, the least, obstacle in the way of any competing claimant, and probably the Bill does not intend it to be so. But this clause, as framed, cannot be relied on to prevent it. It goes no further than to preserve existing remedies, which are not sufficient. According to present practice, a party infeft, whose infeftment is challenged, is in the general case maintained in possession by the Courts until his infeftment is set aside in ordinary course of law; and it ought therefore to be enacted in distinct terms, that no infeftment as heir under this Act shall, where such infeftment is challenged by a competing claimant, be of any avail in a question of interim possession or interim care and management of the estate, but that all such questions shall be determined by a court of competent jurisdiction as such court may deem just, without any regard to such infeftment.

Section 15. This clause, if passed in its present shape, would most seriously affect the interests of superiors, and be tantamount in very many cases to confiscation of their feu-duties. It in effect, though not in words, abolishes the declarator of irritancy ob non solutum canonem. This is well known to be the only really effectual remedy that exists for the recovery of small feu-duties, and it would be most unjust and uncalled for to take it away. Being a remedy connected with tenure, which is abolished by the Bill, it will be necessary to schedule to this clause the form of a short summons of declarator, and to define its effect in the clause itself.

Sections 16 and 20. There is no good reason for a distinction between money payments and grain payments. If a casualty be of fixed amount, payable at fixed periods or intervals, and not dependent on any event or occurrence, and being paid in money is not to be redeemable, neither should it be redeemable if payable in grain; and such casualties being, by section 20, allowed to be stipulated in future, if prestable in money, they should also be allowed if payable in grain. The words "or grain" should therefore be introduced after the words "in money" in section 16 (line 30), and also in section 20 (line 42).

Section 21.--The main objects of this clause are highly approved of. But it requires amendment, and in two particulars. As it stands (1) it extends the sphere of the burgh registers, and (2) it contains a proviso which would introduce the necessity of searching two registers in place of one in every transaction respecting burgh property. The proviso should be struck out; and the words "held burgage at the passing of this Act" should be substituted for the words "at any time heretofore held burgage."

Section 23. This clause, in its present shape, is useless for any practical purpose. If it be intended by it to make registration in the Register of Sasines essential to the completion of a transference of a real burden, and thus to place those securities on the same level with ordinary heritable securities, its object is most important and laudable. But in order to be effectual this will require to be enacted in express terms.

Section 25. The Society has already concurred with the legal profession generally in approving the reduction of the years of prescription from forty years to twenty years, which is the leading object of this clause; and your Committee approve of the enactment now proposed for the first time, that, if possession has endured for thirty years, no regard shall be had to minorities.

But your Committee do not approve of a title which has not entered the public records founding prescription; and, as the word "title" is declared in the interpretation clause (sec. 2) to include

every lawful right to an estate in land, whether recorded in the Register of Sasines or not," this, as the Bill stands, is the effect of this section. Such a principle would introduce very great insecurity into titles, by rendering it possible that the best title to property might be one of which the Register of Sasines afforded

no trace.

Trivial

Section 30.-Your Committee do not approve of this clause. It is useless to prescribe forms which it is not required to adhere to; and this must be the result if the testing question be not whether prescribed forms have been followed, but whether deeds, whatever be their form, "establish such" (substantial) "right." deviations even from prescribed forms are of no consequence as the law stands at present; and material deviations from them ought not to be permitted. Under such a system as this clause would introduce, no conveyancer could have reasonable certainty as to the sufficiency of a progress of titles; and without such certainty confidence in titles must be destroyed. Wherever prescribed forms were departed from, it would depend upon the view which a court of law, in its arbitrary discretion, might take of the particular deed, whether it could be acted on or not. The proper course is to eliminate from the prescribed forms whatever is unnecessary, and to require adherence to them. Any other course will tend not to promote the due administration of justice, but to impede it, and not to diminish litigation, but to increase it.

Section 34. This section is very loosely worded, and accomplishes no useful object. The Register of Sasines is a register applicable to lands, and is therefore not adapted for deeds which neither themselves contain nor specifically refer to any specification of lands. The deed of assumption of trustees at present in use is a deed quite as short and simple as can well be framed for the purpose.

The notes to the Schedule (L) referred to in this section, would occasion a very great deal of trouble, without accomplishing any useful object.

Section 37. This clause proposes to enact that tutors, curators, trustees, and others, representing pupils and minors, or persons under incapacity, may sell, or feu, or do any other act whatever, not only "in excess of their powers," but "contrary to the terms of the deed or settlement under which they act; and this, in the case of curators, "without the concurrence of the minor," and, in all cases, without even the sanction of any ordinary court of law, and without the usual necessity of calling the parties beneficially interested. All this is to be done under an ex parte application to the Lord President, or the Lord Justice-Clerk, and whatever is so done is to be final against the pupil or minor or other person beneficially interested. There appears to your Committee to be no expediency or propriety in such an enactment, which is contrary to the fundamental principles regulating the relations of tutors and curators to pupils and minors, and is especially objectionable with reference to minors, without whose concurrence their curators cannot act in any matter whatever. Moreover the establishment of a new tribunal, in no way superior to the ordinary courts of law, and with extraordinary powers not usually committed to such courts, does not seem expedient.

Section 38. This clause would impose upon onerous purchasers personal responsibility for debts secured over the estate by previous owners. Your Committee consider this an improper provision. There is no reason why the creditors in such securities should have any more security than was stipulated when their debts were contracted, or that one who has bought a property encumbered with debt should be personally liable for anything but the price he has to pay for it. A provision for giving ready effect to the arrangements of parties, where the purchaser is willing to become personally bound, and the creditor willing, to accept his personal obligation in lieu of the sellers, would be a very useful one, and such a provision is contained in section 28 of Mr. Gordon's Bill; but no arrangement of this kind should be forced upon any one without his consent, and that Bill does not propose to do so.

Section 39. This clause traverses two important principles, viz. :