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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Incorporation of Skinners and Furriers in Edinburgh v. Baxter's Representatives [1897] ScotLR 34_545 (17 March 1897) URL: http://www.bailii.org/scot/cases/ScotCS/1897/34SLR0545.html Cite as: [1897] SLR 34_545, [1897] ScotLR 34_545 |
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Page: 545↓
The Court will not grant decree of proving the tenor of a disposition of heritage even if satisfied as to the existence of the disposition and as to the casus amissionis, unless, in addition, written adminicles of evidence are produced showing the terms of the essential clauses of the deed.
The Incorporation of Skinners and Furriers in Edinburgh raised, against the heir-at-law and representatives of the late John Baxter, Edinburgh, an action of proving of the tenor of the disposition of a shop at 381 High Street.
The pursuers averred that the shop had been purchased by them from the late John Baxter in 1812; that “the titles of the property have been lost, and the writ, whose tenor is now sought to be proved, is the disposition by John Baxter in favour of the Incorporation. The said titles, including the disposition aforesaid, appear to have been in the possession of the Incorporation or of the official thereof whose duty it was to have them in custody, down to the year 1848, when they ceased to be so in some way, which no member of the Incorporation now living can explain.” They averred further that a search had been made in the Register Of Sasines, but that they had not found an instrument of sasine in their favour; and that they had also examined the Town Court Books and Sheriff Court Books from 1812 to 1816, but
Page: 546↓
that it did not appear that the disposition had been registered for preservation. The adminicles and other evidence by which the pursuers sought to prove the tenor of the alleged disposition consisted, firstly, in certain extracts from minutes of meetings of the Incorporation showing that they had authorised the purchase of the subjects, and that the purchase had been concluded, and a policy of insurance on the subjects effected with the Caledonian Insurance Company on 24th November 1812. They further produced an excerpt from a disposition by John Baxter to Thomas Miller of “a wareroom flat immediately above that shop sold by me to the said Thomas Miller, and that other shop sold by me to the Incorporation of Skinners and Furriers in Edinburgh," in which it was also stated that “the whole writings of the said subjects were delivered up by me to John Bathgate, deacon of the skinners, William Ritchie, deacon of the furriers, and Thomas Miller, boxmaster to the Incorporation of Skinners and Furriers of Edinburgh, on behalf of the said Incorporation, conform to inventory referred to in the disposition by me of the shop, etc., in their favour.”
With regard to the casus amissionis, they produced excerpts from minutes of their meetings ranging from 1837 to 1849. The first of these contained the following paragraph—“As the boxes and chests containing the title-deeds and other papers belonging to the Incorporation, together with the tablet of the Ten Commandments and Bible, had been formerly removed and are now in the possession of the Boxmaster (Deacon Miller), the meeting took down the Coat of Arms and box containing the Incorporation flag, and sent them to the house of Deacon Miller.”
On 21st October 1847 the excerpt bears—“The meeting having considered this point, unanimously appoint Mr Adam Smith, clerk to the Incorporation, to be their factor, … and they instructed the clerk to receive from Mr Miller the records of the Incorporation—the boxes and papers belonging to them, together with Bible, tablet of the Ten Commandments, and Trades flag.”
There followed excerpts describing the death of Mr Adam Smith, the appointment of a clerk ad interim, and of a new clerk who was authorised to “take delivery of and grant the necessary discharges for the books, papers, and vouchers” in the hands of Mr Smith's representatives.
Finally the excerpt of 9th February 1849 bore—“The clerk then stated that, agreeably to the instructions contained in last minute, Mr Cox and he had waited upon Mr Mason and obtained possession of the books and papers in his hands, amongst which there was nothing of importance but the cheque and bank books, minute and discharge books, and one bond of annuity by the city of Edinburgh. There were no title-deeds. The box No. 2, containing said books and papers, was afterwards conveyed to the clerk's house in Gardener's Crescent.”
The pursuers stated that the description of the property given in the disposition annexed to the summons was taken chiefly from the titles of the adjoining property. They averred further that they had been in undisputed possession of the property since 1812, and that John Baxter having died in 1838 without leaving any descendants, they had been unable to discover his heir.
The pursuers pleaded that “in respect of the facts set forth in the condescendence, the pursuers are entitled to a decree, that the tenor of the disposition described in the conclusions of the summons has been proved.”
The Lord Ordinary ( Kincairney) on 26th February 1897 made great avizandum to the First Division. The First Division on 2nd March allowed the pursuers a proof, and granted a commission to Mr Carthew Yorstoun, advocate, to take the proof.
Mr Andrew M'Cullagh, clerk of the Incorporation, deponed—“During all the time I have held office the Incorporation have been undisputed proprietors of the shop at 381 High Street, and have received the rents yearly. I never heard any question raised as to the Incorporation not being proprietors…. I never saw the title-deeds of that property. It was my duty to keep the papers of the Incorporation. The titles were understood by all the members to be lost…. The Incorporation has sold the shop at 381 High Street, and find that in the absence of the titles they are unable to give the purchaser a complete title, and the present action has therefore been rendered necessary.”
Similar evidence was given by other members of the Incorporation, and evidence was given as to the examination of the registers.
No defender appeared.
Argued for pursuers—They had proved sufficient both as to the execution of the disposition and its tenor, and as to the casus amissionis. With regard to the former, the Court would dispense with specific proof of the terms of the clauses of style. With regard to the testing-clause, where the deed was old and had been acted on without dispute for a long period—as here for more than eighty years—specific proof of the testing-clause and witnesses was not insisted on— Blackwood v. Hamilton, 1713, Rob. App. Cas. 211. It depended on circumstances what written adminicles were required. They had here the main facts, and it could not be expected that they would have a draft. Moreover, this was a simple deed of sale throwing no burden on anyone else, and the Court would not require elaborate written adminicles. They had also shown enough as to the casus amissionis— Winchester v. Smith, March 20, 1863, 1 Macph. 685; Duke of Roxburgh's Trustees v. Young, 1835, 13 S. 476; Ersk, iv. 1, 54.
Page: 547↓
Now, it is the fact that ever since the date of the alleged deed the subjects alleged to have been conveyed thereby have been occupied by the Incorporation, and looking to the nature of the deed I quite agree with the pursuers' counsel that the presumption in favour of its having been duly executed ought to prevail, and also that in such a case we are not bound to require proof of the actual fact of the destruction of the deed if there is sufficient evidence to show that it has been searched for in the proper quarters, and after due search cannot be found. I would consider such a casus amissionis if proved sufficient, but the first difficulty is as to whether the deed ever existed. The only evidence of its existence which we have is a statement by the granter in a disposition to an adjoining proprietor, who held his property apparently under the same series of titles, that he granted such a disposition. That is very slight evidence of the existence of the deed. No doubt the pursuers have possessed the subjects alleged to have been disponed ever since the date of the alleged disposition, and we might consider that sufficient evidence that the disposition was in fact granted; but the evidence would go no further than to prove that the deed once was in existence, and would not show its terms. Assuming the existence of the deed to have been proved, we might presume that it was executed with the solemnities necessary to its existence as a valid deed, but proof of its existence would carry us no further than this. It would not tell us what the terms of the deed were, and would bring us a very small way towards proof of the tenor of the deed set forth in the summons. Now, there are no adminicles in this case at all. The deed was not put on record, and, from first to last, the deed in the summons is a construction of the pursuer's imagination. I should not hesitate to agree with Mr Rankine that if we have proof of the essential clauses of a deed, we may supply mere clauses of style, but then we have no proof of the essential parts of this deed, and accordingly I come to the conclusion—though I would be willing to assist the pursuers in the matter—that we cannot grant the decree they crave.
I must altogether dissent from the proposition that in all cases it is unnecessary to prove the testing-clause of a deed whose tenor is in question. I may say, with all respect to the case in Robertson's Appeals, that we have no means of knowing from the report whether the reversal was on law or on fact. It may be that slight evidence will be sufficient to set up a testing-clause. If a lawyer who had the custody of a deed should say that he remembers that it was a duly executed deed because he had occasion to examine it for some purpose, but that he cannot remember the names of the instrumentary witnesses, we should most probably consider the evidence sufficient; or if an instrument of sasine set forth that a dispositive deed was presented for the purpose of sasine being given in terms of the warrant, we might take this as evidence that the warrant was duly attested. I am not prepared to say that where the purpose of an action is to set up a deed whose execution is in dispute, we could dispense with the evidence of execution which is-furnished by a testing-clause. But I need not elaborate this point, because there is no evidence as to the existence of other essential clauses in the deed supposed,—nothing even to show that it contained dispositive words. There is neither draft, nor copy, nor excerpt to enable us to find in fact that a deed existed expressed in the terms set forth in the summons.
Page: 548↓
The Lord President concurred.
The Court dismissed the action.
Counsel for the Pursuers— Rankine— Irvine. Agents— Auld & Macdonald, W.S.
