Scottish Court of Session Decisions

Subject_1 REGISTRATION.

John Haliburton
v.
John Barrie

Date: 13 January 1681
Case No. No 36.

Reversion on a paper apart of burgage lands needs not registration in the sasine register.

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“The Lords found a reversion on a paper apart of burgage lands needed not registration in the sasine register;” which was very hard; but there was a backbond of trust in the case, and the Lords always find back-bonds of the same date to affect the right. See 6th Feb. 1678, Mackenzie, see Appendix.

The Lords went on the act 1617; but the act seems only to mean reversions incorporated in the body of the right; only it bears a general clause of “all other heritable rights thereof,” which may contend and extend to reversions apart. But see the 29th act, Parl. 1655, requiring that instruments be taken on such reversions, which was in place of registration not then introduced. The Lords were very sensible of the omission of this act, and therefore supplied it by an act of sederunt, and ordained all such reversions in time coming to be registered.

Fol. Dic. v. 2. p. 330. Fountainhall, v. 1. p. 125. *** Stair reports this case:

1681. January 18.—In a competition betwixt Barrie and Haliburton for a tenement in Edinburgh, there was produced a back-bond, bearing an obligement “to denude upon certain terms therein expressed;” and it being alleged that this was not effectual against a singular successor, unless it had been registered in the register of sasines and reversions, conform to the act of Parliament 1617, “declaring all reversions null if not registered,” it was answered, That the act of Parliament contains a particular exception of sasines and all other rights of tenements within burghs. It was replied, That sasines within burghs are excepted, because the town-clerks in burghs are the only notaries to sasines in their burghs, and the town keeps their books and suffers them not to be kept by their clerks and their successors, as prothocols of private notaries, but are patent to all the lieges, and stand in place of registers, which hath been the cause of the exception; and therefore, though sasines within burgh be excepted, reversions within burgh are not generally excepted, but only such reversions as are expressed in the sasines. It was duplied, That there are three exceptions in this statute, 1st, Of sasines and reversions therein; 2dly, Of all real rights of tenements within burghs, which extends to reversions not contained in the sasines, and to assignations to, and discharges of reversions, which cannot be in sasines; and there is a third exception of all reversions incorporated in infeftments, which extends not only to reversions in burghs, but in the country; all which are valid and effectual against singular successors without registration. It was triplied, That the Lords, by act of Parliament, have the interpretation of all acts of Parliament; and therefore this being a great interest for the lieges not to be deceived by latent rights, the act is capable of that interpretation, that within burgh sasines are not effectual against singulars successors unless they be found in the town's books; nor reservations, unless they be in the sasines which are in the town's books; so that the adjection of these words, “all other rights of tenements within burghs,” can only be understood as a pendiele of a former clause of reversions contained in sasines, and so must except only other rights contained in sasines; 2do, The Lords do not only interpret acts of Parliament, but extend them ad pares casus, as they have done in the statutes against bankrupts; and therefore if the reversions within burgh, not being in sasines, had been omitted, the Lords ought to extend the statute to these, seeing the narrative of this statute bears expressly, “to prevent fraud, and the hazard of purchasers bona fide,” which extends as well to burgh as landwart. It was quadruplied, That though the Lords may interpret statutes, yet it must be in casu dubio, as the words may bear; but here there is a clear exception from the whole statute of sasines, “and all other real rights within burghs,” and therefore sasines in burgh are valid, though the town-clerk had omitted to insert them in the town's books, which are his prothocol; which after full debate was decided in the case of one Swan in Aberdeen, No 28. p. 13550, and therefore it is a mistake that the town's books are put in place of registers within burghs; but it is a total exception from the whole act, and it is like upon this consideration that the tenements within burgh are for most part inconsiderable, and it would infer too great a burden to register all their real rights; and albeit it were a public good, that all real rights within burgh were registered there, yet eget constitutione imperiali; and the Lords have no legislative power; for albeit they sustain cases of fraud beyond the statute against bankrupts, yet that is because fraud is a general exception, and not merely by statute, as the nullity of real rights upon not registration is; and albeit the Lords may be strict in the matter of fraud, by the latency of rights within burgh, yet they cannot find them null for want of registration.

The Lords found this bond, “obliging to denude upon certain terms,” to be a reversion, and being of tenements within burghs-royal, found it effectual against singular successors without registration, albeit not contained in any sasine, and that the clause “of all other rights of land within burgh,” with the prior clause, excepting sasine, and the clauses therein did except sasines and reversions, whether in or without sasines, being of tenements within burghs-royal; but they appointed a warrant to be sent to the Convention of Burghs, ordering them “to take caution of their clerks to insert all sasines within burgh in the town's-books, under the hazard of deprivation, and being liable to the hazard of parties by the latencies of sasines;” and recommended to them also by their own acts of burgh, under severe penalties, to ordain “reversions and assignations thereto, and renunciations and discharges thereof to be registered in the town's-books;” certifying, that if this were neglected, that the Lords would consider such rights as latent and fraudulent to deceive purchasers, unless they were some way publicly made known.

Stair, v. 2. p. 835.