His Majesty's Advocate v. William Urquhart of Meldrum, Esq. [1755] UKHL 1_Paton_586

UKHL
His Majesty's Advocate v. William Urquhart of Meldrum, Esq.
[1755] UKHL 1_Paton_586
1 st . A decree of sale does not cut off the right of or exclude parties not called in the ranking and sale; and the Act 1695 does not protect a purchaser in such a case. 2d. A contract as to patronage sustained, though the witnesses' designations to the subscription of one of the contracting parties were not inserted in the body of the deed. 3d. Found no objection to a sasine that the notary's docquet did not mention the particular symbols used in passing infeftment, or bear the notary's motto affixed to his signature, the sasine being eighty years old, and possession having followed upon it.The respondent believing that under the titles of his estate of Cromarty, purchased at a judicial sale, he had good right to the patronage of the church of Cromarty, on the occasion of a vacancy occurring presented a minister to the vacant benefice. But his Majesty's Advocate for his Majesty's interest having disputed this claim, and stated the Crown's

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The testing clause ran thus:—

“In witness where of all the said three parties have subscribed thir presents. Whilks are written by John Dick, servitor to John Gilmour, Writer to his Majesty's signet, day, place, and year of God above written: Before these witnesses, ——— ——— and John Earl of Traquhair, High Treasurer of Scotland, witnesses to the signature of his Majesty, the said sixteenth day of May. And before Walter Hay, Advocate, and Peter Bayne, witnesses to the subscription of the said John, Bishop of Ross. And before John Innes, Mr William Innes, and Alexander Livingstone, witnesses to the subscription of the said Robert Innes of that ilk, At the day of the year of God 1636.” *

The witnesses to Sir Robert Innes' signature signed thus:—

John Innes , Witness to Sir Robert Innes of that ilk his subscription.Mr William Innes , Witness to the samen.Alexander Livingstone , Witness to the samen.The contract was signed by nine officers of state for his Majesty, and correctly signed and tested by the Bishop of Ross. The objection applied only to the other contracting party, Sir Robert Innes.It was also objected that the instrument of sasine which followed on this contract in favour of the Bishop of Ross was null and void, in respect the particular symbols used in infefting in a patronage, namely, the psalm-book and keys of the church, were not used on this occasion, and also that the sasine

Footnote

* Where the blanks appear, the writing, from age, was worn away.

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July 28, 1753.The Court after full argument “sustained the objection, that the witnesses' designations are not insert in the body of the contract 1636; but find that the same may be supplied by condescending on the designations, and instructing the same. And find that Sir Robert Innes could not be completely denuded of the patronage in question in favour of the Bishop, without sasine following in the person of the Bishop. And repelled the objection to the Bishop of Ross's sasine, that the same does not mention the special symbols delivered at taking infeftment, in respect that the sasine bears, that the usual solemnities in the like case were duly observed. As also repelled the objection, that the record of the said sasine does not contain the sign and mark used by the notary who attests it. And they also repelled the objection, that the precept under the quarter seal on which the sasine proceeded, is not produced: And lastly, they repelled the allegiance founded on the Act of Parliament 1695; and find that the right of the Crown is not barred by the decreet of sale.”Dec. 18, 1753.On reclaiming petition, the Lords “sustained the objection that the witnesses' designations are not insert in the body of the extract 1636,” &c.Against these interlocutors, in so far as they sustain the objection that the witnesses' designations are not insert in the body of the contract 1636, the present appeal was brought by his Majesty's Advocate, and a cross appeal by the respondent as to the objections repelled stated to the sasine, and also to those founded on the decree of sale.

Pleaded for the Appellant: —1. At the time the contract

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Pleaded for the Respondent: —l st , The law of Scotland requires to the execution of all deeds that the names and designations of the witnesses be inserted in the body of the deed. The Act 1579, although apparently applying to those cases only where writs are subscribed by the aid of notaries, has been construed by several decisions, to refer to all other deeds; but, at same time, contrary to the spirit and intendment of that act, a rule had crept into practice, of allowing the designations to be supplied by condescendence. The latter rule was expressly abolished by the statute 1681, which also enacted that in all deeds of whatever nature, whether subscribed by the parties themselves, or for them, by the aid of notaries, that the designations of the witnesses must be insert in the deed, consequently that the contract in question is null and void, without the designations of the witnesses to one of the subscribing parties thereto. 2 d , As to the respondent's cross appeal, it is evident in law, that the symbols in giving sasine are essential. Here none are mentioned, and

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After hearing counsel, it was

Declared that the want of the designation of the witnesses to the subscription of Sir Robert Innes in the contract of 1636 is suppliable, and is sufficiently supplied, in the present case, by the subscription of the other parties appearing to have signed that contract, the length of time, and other adminicles, proved in the cause, without any <p style="text-align:right;color:#006600;background-color:white";><b>Page: 593</b>↓</p><page pagenum="593"/>condescendence. And it is therefore ordered and adjudged that the said interlocutor of the 28th July 1753, and the interlocutor of 18th December following, adhering thereto, in so far as they sustain the objection, That the witnesses' designations are not inserted in the body of the contract 1636, and require any condescendence, be, and the same are hereby, <style type="italic">reversed reversed ; and that the said objection of the want of designation of the said witnesses be repelled. And it is further ordered and adjudged that the said cross appeal be, and is hereby, dismissed this House, and so much of the said interlocutor of the 28th of July 1753 as is therein complained of be, and the same is hereby, affirmed.”Counsel: For the Appellant, W. Murray, R. Dundas. For the Respondent, A. Hume Campbell, C. Yorke.Note .—In the Court of Session the judges said, That of necessity the witnesses must be designed. Therefore lapse of time won't free from nullity. In regard to non-use of the proper symbols and the notary's motto, they repelled these objections, the sasine being eighty years old, possession had upon it, and the practice as to these solemnities at the time not being uniform.—M. S. on Sess. Papers.Lord Kames observes, Dec. p. 80:—“It appears to me a very clear point, that, before the Act 1681, it was not a necessary solemnity in an obligation subscribed by the granter, that the witnesses should be designed, or so much as be mentioned. By the common law, sealing was sufficient. The Act 1540 made the subscription of the party essential, without any other form than that the subscription should be in presence of witnesses. It was not even made necessary that the witnesses should be named. The Act 1579 relates only to deeds subscribed by notaries in place of the party. This is an extraordinary power, and the legislature justly thought that it required extraordinary checks. A deed subscribed by the party himself is in a very different case. Originally sealing was thought sufficient; the subscription of the party was made necessary no earlier than 1540; and in the

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In this case the general question of the effect of a decree of sale obtained by a purchaser, at a judicial sale, against the right of a person not called in the sale, was debated, and decided to be ineffectual as a bar to that person's right.This part of the case is founded on by Erskine, B. II. tit. 12, § 63.—Adopted by Professor Bell, 2 Comm , p. 321, and recognised in the case of Middlemore, 5th March 1811, Fac. Coll.